I do not question the right of the Legislature to enact laws which in its wisdom are found necessary and desirable. In my opinion there are serious questions as to the constitutionality of article 25 of the Agriculture and Markets Law, but in view of the findings hereinafter set forth, it is not necessary to reach that issue.
"What the plaintiff seeks in this action is a declaration that Few York State Apple Marketing Order F. V. 2 is “ constitutional ” and is in all respects legal and proper. In the opinion of Special Term it is noted that the defendant seeks a declaration that the order is unconstitutional, illegal and void.
It is necessary, in my opinion, to summarize certain factual situations pertinent to the issue:
*221(a) The petition was instituted by the Apple Market Order Development Committee which represented:
1. Western New York Apple Growers Association;
2. New York Members of the New York and New England Apple Institute.
(b) Following the approval of the proposed Marketing Order F. V. 2, the Commissioner contracted with the same petitioners to carry out the program.
(c) The Manager of the New York and New England Apple Institute received one half of his salary from the Market Order Fund.
(d) The promotional material, paid for by the Market Order Fund, urged the consumption of apples generally, in some instances reference being made to New York apples.
I find that the notice of the referendum conducted by the Commissioner was insufficient. Section 294 of the Agriculture and Markets Law provides that marketing orders are “ subject to the approval of sixty-six and two-thirds per centum of the producers in the area affected participating in a referendum vote ”. The Agriculture and Markets Law contains no directive in regard to the manner in which notice of such a referendum is to be given or how such a referendum is to be conducted.
In this case the Commissioner published an official notice of the referendum in 15 newspapers throughout the State, which newspapers were published in 14 counties. It further appears that unofficial notice was given by means of press releases through newspapers, radio and television and that there was an official notice posted in all county courthouses. Mr. Duncan testified for the Commissioner as the Director of the Division of Marketing in 1959. He testified that at the time of this referendum apples were being grown in 58 counties in this State as shown in the 1958 agricultural census and that these were counties in each of which there were more than 500 apple trees. Prior to the referendum the witness did not contact the County Extension Agents in regard to the names of apple growers. This witness finally admitted that he could have obtained a list of growers, but that such a list would not have been complete. He also conceded that there were about 7,000 apple farms in this State in 1959. The substance of his testimony in regard to the notice given in May of 1959 is that there was no published list of apple growers available at that time and that the Department made no effort to give personal notice to the apple growers. It further appears that this order affected all of New York State geographically and that any individual who sold apples pro*222duced by him was affected by such order no matter whether he had one tree or several trees. The plaintiff states on this appeal ‘ ‘ An apple tree is not so readily ascertainable when the area covered is the whole state.”
In Schroeder v. City of New York (371 U. S. 208, 211) the court stated: “ ' An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections’”. Applying this general principle of notice, it appears that although the Commissioner made no attempt to give personal notice, personal notice would not be required as to this referendum because it covered such a broad geographical area and it appears that all of the individuals affected could not be ascertained. However, the question remains as to whether or not a legal notice published only in 14 counties is sufficient to give the growers a reasonable opportunity to vote.
It would seem apparent that a legal notice published in only 14 counties out of at least 58 counties affected is patently insufficient. Special Term found that such notice was “ as good as was possible as a practical matter.” (41 Misc 2d 749, 752.) The majority in this court find that such notice together with the posted notice, general publicity, and the direction to County Agricultural Agents to give notice to area growers were sufficient. As noted by the majority, the fact that only a small percentage of the acknowledged 7,000 growers participated does not mandate a finding that the notice was insufficient. However, the fact that only about 10% of the known eligibles participated is entitled to some consideration in passing on the sufficiency of the notice given.
All growers are not presumed to be sophisticated. We are dealing primarily with farmers and at least to a great extent, rural areas. The publication of a legal notice in the official county newspapers would have at least met the requirements in regard to local and State-wide elections. (See County Law, § 101; Village Law, §§ 3-304, 3-314, 4-428; Town Law, § 82; Election Law, § 77.) The publication of legal notices in official newspapers in the area affected by proposed changes where referendums are required seems to be a State-wide custom established by the Legislature in regard to counties, villages, towns and State.
In this case the matter subject to the referendum affected the entire State of New York or 62 counties. There was no proof *223introduced to show that the legal notice of the referendum was published in each county, nor that the newspapers in which the notice was published had circulation in all of these counties. The New York City area was apparently deemed by the Commissioner not entitled to legal notice even though the order on its face affects all of New York State and would apply where an individual had only one apple tree from which he sold apples.
The Commissioner has not shown on this appeal any facts indicating a necessity for departure from such custom and since he has placed the validity of this marketing order in issue, I find that the marketing order is void because of his failure to give sufficient legal notice of the referendum required by the statute. It is to be noted that this order not only affects a grower’s pocketbook, but also has certain sanctions for disobedience. (Cf. Agriculture and Markets Law, § 40.)
An action was recently decided which concerned failure to comply with the rules here involved (Matter of Wickham v. Schoenberg, Albany County Special Term, June, 1966).
The majority note that the defendant made no denial nor produced any proof as to the failure to receive actual notice. The answer to that is that this is an action for declaratory judgment instituted by the Commissioner for a determination that the order be held constitutional. The burden is on the said Commissioner and not on the defendant. An examination of the exhibits, particularly the news media, makes it abundantly clear that the alleged notice, published as a news item, was not sufficient as to the time, the place or the manner of conducting the said election.
Assuming arguendo, but not conceding, that the notice was sufficient, I would hold the marketing order illegal and void for the reasons hereinafter set forth.
This regulation or order is a direct interference and imposition upon the free enterprise activity of producing and selling apples.
The question here considered is whether or not this order comes within the authority of the Commissioner as set forth in article 25 of the Agriculture and Markets Law.
In section 293 of this law, a marketing order is defined in subdivision (8) as follows: “An order issued by the commissioner pursuant to this article, prescribing rules and regulations governing the marketing for processing, the distributing, the sale of, or the handling in any manner of any agricultural commodity produced in this state during any specified period or periods.”
Upon examination of the order involved herein it is apparent that this order provides for advertising, “ apple marketing *224and/or product research ’ ’, and the obtaining of information and dissemination of the same. (See 1 NYCRR 201.7, 201.8, 201.9.) In no respect does this order purport to govern any of the matters set forth in said subdivision (8) of section 293.
Admittedly, section 294 of this law provides in paragraph (d) of subdivision (2) that advertising and sales promotion expenses are to be included in the budget when required in an order, but since such matters are not included within the definition of a marketing order I conclude that they are authorized only as incidents of such an order. Accordingly, I find that the Commissioner has exceeded his authority under the statute and the subject order is null and void. (Cf. Schulman v. People, 10 N Y 2d 249.)
The legislative declaration found in section 292 of this law recites among other things that the marketing of agricultural commodities in excess of reasonable and normal market demands therefor and the inability of individual producers to develop new and larger markets for agricultural commodities, “ result in an unreasonable and unnecessary economic waste of the agricultural wealth of this state. Such condition and the accompanying waste jeopardize the future continual production of adequate food supplies for the people of this and other states.” (Emphasis added.)
Section 294 provides that the Commissioner may make and issue marketing orders after a hearing and referendum, but does not require any findings which must be made by the Commissioner prior to making such an order.
As a further comment on the validity of this order, it appears that the Commissioner in his decision before issuing the marketing order herein made various findings and conclusions but in none of these does it state that there was any jeopardizing of the future continual production of adequate supplies of food.
In his finding No. 6, he determines that other competing fruits have replaced apples with some of the consumers, which indicates that there is an ample supply of the necessary foodstuff.
Since such a jeopardy was a part of the legislative finding, it seems that the Commissioner would be required to make such a finding before issuing such an order and in the absence of such a finding the order would be arbitrary and capricious.
It seems conclusive from the present record that there is no exact proof as to what benefits, if any, have been realized from the advertising, there being no evidence of a depressed market, wasting of apples, nor any reasonable need for such order, the failure of which will “ result in an unreasonable and unnecessary economic waste of the agricultural wealth of this state ’
*225It should he further emphasized that there is no similar interest, comparables or other legal basis for comparing the present proceedings to the milk control provisions of the law. To do so only unnecessarily complicates the issue. The present order is not regulatory in the usual sense since it does not attempt to regulate the market or prices. In sum, the present order is a requirement for compulsory advertising, the need, the necessity or the effect of which cannot be discerned in the present record.
The Legislature could never have intended that the present statute should permit rules and regulations to be promulgated to effect the present results. It is succinctly stated in Matter of Meyer (209 N. Y. 386, 389): “ The legislative intention, if expressed, is the law itself. It is always presumed, in regard to a statute, that no unjust or unreasonable result was intended by the legislature. * * * Where a particular application of a statute in accordance with its apparent intention will occasion great inconvenience or produce inequality or injustice, another and more reasonable interpretation is to be sought.”
This language is likewise applicable to rules and regulations enacted as a result of the statute. (See Matter of Chatlos v. McGoldrick, 302 N. Y. 380.)
In balance, the statute itself being of recent origin (1957), in view of the inadequacy of the notice, the failure of the order to comply with subdivision (8) of section 293 of the Agriculture and Markets Law and for the other reasons set forth herein the action of the Commissioner was arbitrary and capricious and the judgment should be reversed on the law and the facts, the New York State Apple Marketing Order F. Y. 2 be determined void, and the defendant have judgment accordingly.
Gibson, P. J., Reynolds and Aulisi, JJ., concur with Taylor, J.; Herlihy, J., dissents and votes to reverse, in an opinion.
Judgment affirmed, without costs.