I am impelled to dissent for the following reasons:
First: However inartificially an act of the legislature may be drawn, however obvious its defects may be, I am unalterably opposed to holding it unconstitutional on so meagre a record as is presented to us in this case.
Second: I do not think the complaint states a cause of action.
Third: So far as these plaintiffs are concerned, I do not think there is any unconstitutional delegation of legislative power to the director of agriculture under the terms of chapter 12, Laws of 1933, Ex. Ses., p. 26 (Rem. 1934 Sup., § 3035-1 [P.C. § 77-11] et seq.).
I. The record upon which the court has denounced this act as unconstitutional consists of the amended complaint, an application for a temporary injunction, an affidavit by an officer of one of the plaintiff corporations in support of the application, and two affidavits by employees in the department of agriculture in resistance to the application. There is, indeed, a so-called statement of facts. This, however, contains no evidence of any character. It consists wholly of a colloquy (preliminary to argument) between the court and counsel for the respective parties. The sum and substance of this colloquy is that counsel for plaintiffs, in effect, said: "We are here contending that this act is unconstitutional for many reasons," and counsel for defendants said: "It is not unconstitutional for any reason." Nowhere in the record, so far as I can find, does there appear any order, or the resume of any *Page 434 order, made or proposed to be made by the director of agriculture. It is assumed that he has made an order with respect to the price commission merchants are to charge the consumer for melons and tomatoes sold for producers on commission. We can only guess as to what the contents of that order may be. Whatever they may be, the court has, in a sweeping decision, held that the director was without power to make the order. I cannot lend my assent to the holding of any legislative enactment unconstitutional in such a summary manner.
It has become trite to say that every intendment is extended to a legislative act in favor of its constitutionality; that the court will not declare an act unconstitutional unless from the record it can be said that its unconstitutionality is established beyond all reasonable doubt. The act here under consideration itself contains the following provision:
"If any section, sentence, clause or part of this act is for any reason held to be unconstitutional, such decision shall not affect the remaining portions of this act. The legislature hereby declares that it would have passed this act and each section, sentence, clause or part thereof, irrespective of the fact that one or more sections, sentences, clauses or parts hereof be declared unconstitutional." (Rem. 1934 Sup., § 3035-19 [P.C. § 77-29].)
In this decision, the court has neither accorded the act the presumption of constitutionality nor given force to the provision of the act just quoted.
II. The complaint in this action, stripped of verbiage, simply alleges that the plaintiffs are commission merchants — middlemen — engaged in handling agricultural products on a commission basis; that they have heretofore paid a license fee as a prerequisite to engaging in that business; that the defendants will prefer criminal charges against them unless they take *Page 435 out an additional license under the terms prescribed in chapter 12, Laws of 1933, Ex. Ses., p. 26 (Rem. 1934 Sup., § 3035-1 [P.C. § 77-11] et seq.); that they have a right to handle the producers' property under the law of supply and demand. They allege specifically:
"That there is involved in the threat of defendants, and each of them, to arrest and prosecute the plaintiffs as aforementioned, for the aforesaid reasons, a question of public interest and convenience, in that they handle a large portion of the fruits and vegetables disposed of in and on behalf of producers, marketed in said Spokane county, and the public is vitally interested in the question whether the producers and consumers of Spokane county, Washington, can be affected by the terms and conditions of any marketing agreement approved or prescribed by the said director of agriculture, and deprived ofthe benefits of free and unrestricted traffic in fruit andvegetables . . ."
Now, it is to be remembered that these plaintiffs are not producers. Neither are they here in the capacity of consumers. It is an elementary principle of statutory construction that the court will not hold a legislative enactment unconstitutional at the behest of one whose constitutional rights are not affected.
Until now, I had believed, or, rather, had hoped, that the philosophy of Mr. Justice Holmes' dissenting opinion in Lochnerv. New York, 198 U.S. 45, 25 S. Ct. 539, had come to be accepted as the standard by which constitutional guarantees, in rights to property, were to be determined. The philosophy of his opinion, as I understand it, is this: that the rights to own, use and dispose of property, guaranteed by the constitution, do not include mere privileges enjoyed under the economic system known as laissez faire. The effect of the decision in this case is to establish in plaintiffs a property right in the law of supply and demand. (And, as I understand the complaint, that is the gist of the *Page 436 relief sought.) It must not be forgotten that the plaintiffs are simply middlemen, handling other people's property. They are not here seeking to restrain the director of agriculture from fixing a price at which their own property may be sold. They claim the right to sell the producers' property on an open market at a price determined by consumer demand. And by this decision they are accorded that right as a property right guaranteed by the constitution.
The question in this case, as I see it, is whether the business of the middleman, solely as such, is subject to regulation and control by the state. His very business (regardless of the commodity handled), affecting, as it does, the producer on the one hand and the consumer on the other, is surcharged with public interest.
It seems to be conceded by all economists that the holocaust that has befallen us during the past five years is largely due to the breakdown of the mechanism of distribution. The middleman is an essential cog in that mechanism. How the breakdown can be repaired without the intervention of the government, is beyond my comprehension. That the government has the power to intervene and repair and adjust that mechanism, seems to me to be unquestionable. The majority opinion seems to concede the power, but concludes that it has not been properly exercised in chapter 12, Laws of 1933, Ex. Ses., p. 26; that, under that act, there has been an unconstitutional delegation of power to the director of agriculture.
III. It seems to me that this conclusion has been reached under a misapprehension of who these plaintiffs are and what the act provides with respect to their activities in handling agricultural products. The act is very general in terms, except in one aspect, and that is the aspect which affects the plaintiffs. In respect to the activities of the middleman, the act could *Page 437 hardly be more explicit. Sections 8 to 14, inclusive, are wholly devoted to the licensing of "processors, manufacturers, associations of producers, and all other persons engaged in thehandling in the current of intrastate commerce of any agricultural commodities." With the exception of §§ 10, 11 and 14, a resume of these sections has been set out in the majority opinion. Sections 10 and 11 provide a method for revocation of licenses for cause; § 14 relates to the amount of license fees.
The provisions of the act leave to the director of agriculture nothing but administrative functions with respect to the licensing and regulation of middlemen. In this respect, the act is as circumstantial as the act subjecting carriers on the highways to the regulation and control of the director of public works.
It does not seem to me that, in view of the explicit provisions of §§ 8 to 14, inclusive, of chapter 12, the majority opinion in this case can be soundly rested on the theory that there has been an unconstitutional delegation of legislative power to the director of agriculture. Rather, the conclusion must, of necessity, rest upon the assumption that the director will unlawfully exercise the powers delegated.
I think, on the record here presented, that assumption is unwarranted. It is not to be presumed that the director has promulgated, or will promulgate, unlawful orders. At any rate, plaintiffs are in no position to question the director's orders until they themselves have complied with the law by taking out licenses.