Upon the question of monopoly, I am much in accord with the views expressed by Judge Tolman. There is, however, another feature of this case which seems to me to be of primary importance. The agricultural adjustment act, which we now have under consideration, provides for three things which, in my opinion, were beyond the power of the legislature: First, it authorizes the director of agriculture *Page 431 to limit the production of agricultural products; second, while not saying so in terms, the act is essentially one of price fixing; and third, it gives to the director of agriculture the power to determine the number of persons that may be engaged in the wholesaling of agricultural products in a particular community or city.
It may be admitted that all businesses are subject to some measure of public regulation, and that, in the interest of the public health, the production and sale of agricultural products may be regulated. This, however, is a very different thing from fixing the price, limiting the production, and determining who shall, and who shall not, engage in the business of selling such products.
In New State Ice Co. v. Liebmann, 285 U.S. 262,52 S. Ct. 371, the court had under consideration a statute of the state of Oklahoma which declared that the manufacture, sale and distribution of ice was charged with a public interest, and forbade anyone engaging in that business without first having procured a license from the state commissioner. It was there said:
"It must be conceded that all businesses are subject to some measure of public regulation. And that the business of manufacturing, selling or distributing ice, like that of the grocer, the dairyman, the butcher or the baker may be subjected to appropriate regulations in the interest of the public health cannot be doubted; but the question here is whether the business is so charged with a public use as to justify the particular restriction above stated."
The court in that case held the law unconstitutional, and in the opinion it was also stated:
"It may be quite true that in Oklahoma ice is not only an article of prime necessity, but indispensable; but certainly not more so than food or clothing or the shelter of a home. And this court has definitely said *Page 432 that the production or sale of food or clothing cannot be subjected to legislative regulation on the basis of a public use;. . ."
Whether a particular business or industry is affected with a public use, is essentially a question of fact.
Much has been said about the case of Nebbia v. New York,291 U.S. 502, 54 S. Ct. 505, 89 A.L.R. 1469, where it was held that the milk industry in the state of New York was charged with a public interest. The holding in that case was based upon the findings of a legislative committee of the state of New York, which "held 13 public hearings, at which 254 witnesses testified, and 2,350 typewritten pages of testimony was taken." There is no such showing in the present case, and the dogmatic declaration of the legislature is not sufficient to charge a particular business or industry with a public use. If a business or industry is charged with a public use, it, of course, would be subject to regulation the same as a public utility may be regulated as to its charges and service. The Nebbia case is not authority for the proposition that the production and distribution of milk, under any and all conditions, are charged with a public use. The holding in that case, as I understand it, was based solely upon the facts as they existed in the state of New York, and as found by the legislative committee.
As I view the case now before us, as already indicated, the real question to be determined is the constitutionality of the law, and I am of the view that, if the law be held constitutional, then there is no unlawful delegation of legislative authority, because such a law can only be carried out through administrative officers. In my opinion, however, the law is unconstitutional because the legislature itself had no power to fix the price, limit the production, or control the number of *Page 433 persons that should engage in the business of wholesaling agricultural products.
For the reasons herein stated, I think the judgment of the superior court in this case should be affirmed.