Defendant appeals from a judgment of the Supreme Court at Trial Term declaring the provisions of *218article 25 of the Agriculture and Markets Law to be constitutional and an apple marketing order of the Commissioner of Agriculture and Markets promulgated thereunder to be legally valid in all respects. The statute, its legislative history and the facts which prompted the Commissioner’s action are fully delineated in the decision of Trial Term (41 Misc 2d 749).
Appellant first contends that the apple-growing industry is not subject to regulation by the Commissioner. Although the production of apples constitutes a relatively small percentage of the total agricultural output of the State, it has an annual market value of about $35,000,000 and constitutes two thirds of the entire fruit crop of the State. We are not prepared to say that this segment of the fruit industry is of such unimportant consequence to the health and general welfare of the people of the State as not to be subject to regulation within the criteria fixed in Nebbia v. New York (291 U. S. 502) upon which appellant principally relies. Moreover, the better reasoned authorities of other jurisdictions would indicate that the New York apple industry should be regarded as bearing sufficiently upon the public interest to be subject to State regulation and control. (See, e.g., Miller v. Michigan State Apple Comm., 296 Mich. 248.) Nor can we say that the means selected by the Commissioner to provide advertising, promotion and publicity programs designed to create new markets for the product, to maintain existing ones, to carry on marketing research and to keep growers informed of various aspects of the industry-—all within the contemplation of the grant of power contained in paragraph (d) of subdivision (2) of section 294 of the Agriculture and Markets Law — were so unrelated to the conditions of “ unreasonable and unnecessary economic waste of the agricultural wealth of this state ”, the existence of which the enactment of article 25 was designed to correct (Agriculture and Markets Law, § 292), as to be considered arbitrary and violative of due process.
We find no merit in the argument that paragraph (d) of subdivision (2) of section 294 of the Agriculture and Markets Law should be read to require all persons mentioned in the statute, i.e., producers, processors, distributors or handlers, to pay a part of the assessment to defray the cost and expenses of the administration of the marketing order. The Legislature’s use of the disjunctive “or” makes clear that it was intended to leave to the discretion of the Commissioner the selection of the class upon which the assessment should fall. Appellant regards the assessment imposed by the Commissioner as a “ tax ” and complains that because he has derived no profit from his apple-*219raising endeavors he should not be compelled to pay it. It is difficult to perceive any infringement upon his constitutional rights on this basis. Indeed, the assessment here involved does not appear to be a tax at all but merely a fund-raising measure incidental to a valid regulation and this is true even though the assessment may be the “ heart ” of the regulatory order. (See United States v. Butler, 297 U. S. 1, 59.) Moreover, we view the expenditure of the funds raised by assessment as redounding primarily to the benefit of appellant and of all other apple producers from an anticipated expansion of markets for their product. That other classes involved in apple marketing may also be benefited is or could be found to be incidental.
Appellant further argues that the time when, the places where, the manner of balloting pursued and the notice given contrived to render the referendum conducted by the Commissioner, from which the marketing order issued, unfair, illegal and void. That only a relatively small percentage of those entitled to vote participated in the referendum is of no moment. Nor is there any showing that any ineligible person was permitted to cast a ballot. In our judgment the posted notices and the newspaper and radio publicity which the referendum received together with the instructions given to all County Agricultural Agents in the State to place the notice of the referendum in the hands of growers, which presumably were followed or at least not shown to have been disregarded, were, in the absence of an established list of persons engaged in apple growing which rendered the giving of personal notice a practical impossibility, reasonably calculated under all of the circumstances to apprise interested persons of the upcoming referendum and thus measured up to the quality which the due process clause of the Fourteenth Amendment of the Federal Constitution requires. (Schroeder v. City of New York, 371 U. S. 208.) Appellant does not deny that he received the notice. Moreover, he failed to produce as a witness at the trial a single person entitled to vote on the referendum who had not received actual notice that it was to be conducted.
It is also contended upon appeal that the use of the funds collected by the Commissioner from the assessments to pay apple growers’ associations for services performed under contracts with him constituted gifts of State funds in violation of section 8 of article VII of the Constitution of the State of New York and of section 174 of the State Finance Law which requires that public contracts involving more than a specified amount shall be let by competitive bidding. The declaration on the subject legislation that the proceeds of the assessment are not *220to be considered State funds (Agriculture and Markets Law, § 294, subd. [8]) fortified by the fact that the assessments were not exacted by the use of the taxing power of the State negates the contention that the Commissioner was handling public money. Furthermore, the payments cannot be deemed a gift in any sense since they were made in reimbursement for services performed pursuant to subsisting contracts. The provisions of section 174 have no application to contracts of this character. (Matter of Lynd v. Heffernan, 286 App. Div. 597, mot. for rearg. and mot. for lv. to app. den. 1 A D 2d 793.)
The contention that article 25 effects an unlawful delegation of legislative power to the apple growers is fully discussed and was correctly adjudged in the trial court’s decision.
Finally, concerning plaintiff’s argument that defendant not having timely challenged the marketing order by resort to article 78 of the CPLB may not raise the defenses in his amended answer which challenged the constitutionality of the statute and the order we merely note the fact that plaintiff is the party who sought a declaration that his marketing order “ is constitutional and is in all respects legal and proper.” To deprive defendant of the right to deal with the very questions put in issue by plaintiff would deny to him access to the judicial process which plaintiff himself first invoked.
The wisdom of this marketing order and the equitability of its application are administrative matters without the scope of our power to review in an action for a declaratory judgment. Our function is to assess the legality of the promulgated marketing order and the statute which underlies it. In sum we find on this record that defendant’s assertions of illegality have not been sustained.
The judgment should be affirmed.