dissenting:
The Milk Commission of Virginia is declared to be an instrumentality of the Commonwealth by an act of the *978General Assembly, approved March 29, 1934, Acts 1934, chapter 357, page 558. That act authorized it to divide the State into “markets” or “milk sheds,” and to fix a maximum and minimum price for milk within these designated areas. It further provided that it shall have control over the production of milk and may require that distributors be licensed by it. A distributor is defined as one who sells milk to consumers. A consumer is one, other than a milk distributor, who purchases milk for human consumption and a producer-distributor is one who sells milk produced by himself. When a market has once been defined, producers can sell only within that market subject to this exception only: If at the time of its establishment they are shipping milk to any other market they may continue to do so until that custom is voluntarily abandoned.
Acting under powers conferred it has set apart Augusta county and designated it as “Staunton-Waynesboro Production Area,” and that area is divided into the Waynesboro market and the Staunton market.
The defendants in the court below, called defendants here, are farmers of Augusta county who live upon their farms, keep cows for dairy purposes and sell their milk to customers in Staunton under permits from health authorities. In other words, they are ordinary farmers who conduct ordinary dairies and who comply with all sanitary regulations designed to make their milk wholesome. Their business has been conducted in a manner satisfactory to themselves and to their customers for a number of years. Now they are ordered to advance prices to Staunton customers, many of whom have notified them that they are unable to pay these advances and must discontinue their purchases. For these and other reasons they have refused to adopt the scale of prices fixed by the Commission and have refused to apply for any license from it to do business.
In this state of affairs the Commission has sought an injunction in which it asks that the defendants “may each be enjoined and restrained from distributing milk in the *979city of Staunton until they, or each of them, shall have applied for and received a license from the Commission, and, further, from selling milk in said markets at any other price than that fixed by the Commission, or violating any other rule or regulation of the Commission; * *
They, by way of answer, challenged the constitutionality of the act. This cause came on to be heard; the trial court was of the opinion that an injunction should issue in accordance with the prayer of the bill and decreed accordingly. That order is now before us on appeal. The Commonwealth contends that it is a proper exercise of police power.
That power is an attribute of sovereignty and is inherent in government. We have • unnumbered definitions. Our court, speaking through Judge Keith, in C. & O. R. Co. v. Commonwealth, 105 Va. 297, 54 S. E. 331, 333, cited with approval this definition by Mr. Justice Harlan in Chicago, B. & Q. Ry. Co. v. Illinois ex rel. Drainage Comm’rs, 200 U. S. 561, 26 S. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175. “The police power of a State embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety,” subject of course to constitutional limitations and to the inalienable rights of citizens.
The underlying governing principles are not particularly obscure, but it is their application to changing conditions which troubles us.
This definition by Judge Cooley has met with wide approval: He says that the police power of a State “embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others.”
*980It is not contended that the health or morals of the community are here involved. Ample sanitary regulations appear in chapter 51 of our Code [section 1154(1) et seq.']. The defendants say that they have complied with them and this statement is not denied. The Commission, in its bill, tells us what the trouble is. It “alleges that R. J. Reynolds, C. H. Miller and J. C. Montgomery are now selling fluid milk in the city of Staunton without having obtained a license as provided by the act of 1934 and that they are selling contrary to and below the prices established in the rules and regulations of the Commission estáblished for the Staunton-Waynesboro market and have been doing so since the effective date of such regulations as of July 22, 1934; and have declared their intention to refuse to pay assessments as printed in regulation number six.”
Courts should not travel beyond the record, but they should not affect to be ignorant where the matter is one of common knowledge. We know that producers have participated in organized blockades of centers of consumption, and in the prosecution of their purpose milk trucks have been overturned and their contents wasted. It has not been suggested that this was done to protect the health or morals of the city. Plainly it was an economic struggle. This struggle, happily divested of lawlessness in Virginia, is voiced in the act in judgment. What the legislature undertook was to make the dairy business profitable, and this it sought to accomplish by fixing the price of its products.
The Commission may order milk to be sold at one price in Staunton, at another in Harrisonburg and may leave Woodstock to shift for itself. The State is interested in the health of all its people and not in that only of those who may chance to live in some undesignated milkshed. Each citizen is entitled alike to its solicitous care. Not that the same measures must everywhere be adopted, but that such precautions shall everywhere be taken as appear necessary. It is not enough that sanitation is merely incidental; it must have been intended to be effected. It is perfectly clear that there was no intention to mark out milk-*981sheds where milk is not produced as a commercial commodity. The statement in the bill that it is designed to promote public health and public peace is but a makeweight.But if it were not it still could not be coupled with a price-fixing provision unless the industry was affected with a public interest. While courts uphold statutes where it is possible, they should give valid reasons for their judgments and not excuses.
The dairy business is a major industry and all would like to see it prosper, but the means adopted, defendants say, so far as they are concerned, are producing an opposite result. Customers who bought at profitable prices no longer buy at all.
Section 1 of our Bill of Rights declares: “That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
The same idea appears in the Declaration of Independence where it is said:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among -these are Life, Liberty and the pursuit of Happiness.”
Bryce, The American Commonwealth, vol. 1, page 438, in commenting, said:
“The Bill of Rights is historically the most interesting part of these Constitutions, for it is the legitimate child and representative of Magna Charta, and of those other declarations and enactments, down to the Bill of Rights of the Act of 1 William and Mary, session 2, by which the liberties of Englishmen have been secured,” and adds:
“Thirty-one States declare that ‘all men have a natural, inherent, and inalienable right to enjoy and defend life and liberty’; and all of these, except the melancholy Missouri, add the ‘natural right to go pursue happiness.’ ”
*982Some contend that these articles are but declarations of general principles rather than positive grants of power and for this reason are to be more liberally construed. This is not the law in Virginia and our Bill of Rights is as much a part of our Constitution as the first ten amendments to the Federal Constitution are a part of it. Brooks v. Town of Potomac, 149 Va. 427, 141 S. E. 249. We might cite many other Virginia cases to the same effect. Indeed, these" enumerated inherent and inalienable rights would still be protected had they never been named.
“The bill of rights though incorporated into and made a part of the present Constitution, has the same force and authority which it has always had, neither more nor less, as containing the recognized and fundamental principles of a well regulated government. It is an authoritative affirmation of certain general principles, and a declaration of the political rights and privileges which it is the duty of the government to secure to the people.” Ruffin’s Case, 21 Gratt. (62 Va.) 790.
In Richmond, F. & P. R. Co. v. City of Richmond, 145 Va. 225, 133 S. E. 800, 803, this court, speaking through Judge Burks, said: “Man as an individual possesses certain rights which are called inherent rights, inborn and inbred, the gift of his Maker, and essential to his existence and well-being, such as the rights of life, liberty and the pursuit of happiness, which are not surrendered by entering into organized society. They existed before society was organized and are not surrendered by entering into the organization.”
We might add that without them organized society, as we know it, would be impossible. Lipscomb v. Nuckols, 161 Va. 936, 172 S. E. 886; Quesinberry v. Hull, 159 Va. 270, 165 S. E. 382.
“Liberty” and the “pursuit of happiness and safety” mean something more than physical freedom and a happy home.
In Young’s Case, 101 Va. 853, 45 S. E. 327, 328, Judge Harrison said: “The word ‘liberty’ as used in the Con*983stitution of the United States and the several States, has frequently been construed, and means more than mere freedom from restraint. It means not merely the right to go where one chooses, but to do such acts as he may judge best for his interest, not inconsistent with the equal rights of others; that is, to follow such pursuits as may be best adapted to his faculties, and which will give him the highest enjoyment. The liberty mentioned is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purpose above mentioned. These are individual rights, formulated as such under the phrase ‘pursuit of happiness’ in the Declaration of Independence, which begins with the fundamental proposition that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.”
In the concurring opinion of Field, J., Butchers’ Union, etc., Co. v. Crescent City, etc., Co., 111 U. S. 746, 4 S. Ct. 652, 660, 28 L. Ed. 585, he said:
“The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial must, therefore, be free in this country to all alike upon the same conditions. The right to pursue them, without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright.”
The substance of it all is this: One may, without let or hindrance, follow the ordinary callings of life which are in themselves innocent and which do not injure their neighbors, which do not violate the maxim, “Sic utere tuo ut *984alienum non laedas.” Injury may sometimes follow from legitimate and uncontrollable causes. One department store may be built against another, and in the end, through better management and ampler credit, bankrupt its competitor. This is a hazard incident to every commercial venture, not devoted to a public use.
The production and sale of milk is an immemorial industry, and not until today has it been thought necessary to fix by statute the price of this product.
The Commission is given power to control production. It may say to one, “Your market will not absorb all the milk you are offering for sale. You must produce less.” And it may say to another who has grass lands suitable for dairy purposes, “You cannot embark in such a business. Additional production is not needed in your market.” It may fix a price so low as to be unprofitable, and it may place it at a point so high as to drive away customers, the exact thing which the defendants say has been done in the instant case. We must look not only to that which has been done but to that which may be done. Richmond v. Carneal, 129 Va. 388, 106 S. E. 403, 14 A. L. R. 1341. Its rulings may be arbitrary and unjust and yet there is no appeal. It is perfectly true that an appeal, as it is ordinarily understood, is not a part of due process of law, but an appeal to some judicial tribunal is necessary before private property can be destroyed. Proper exercise of police power is subject to supervision of the courts. Bowman v. Virginia State Entomologist, 128 Va. 351, 105 S. E. 141, 12 A. L. R. 1121.
We do not for a moment minimize the value of police power. Without its free use a sovereign State could not function and those settled principles upon which it rests may be applied from day to day as new conditions demand, but it cannot undermine the inalienable right of citizens and it cannot override constitutional guaranties. Buck v. Bell, 143 Va. 310, 130 S. E. 516, 51 A. L. R. 855; Strawberry Hill Land Corp. v. Starbuck, 124 Va. 71, 97 S. E. 362; Shenandoah Lime Co. v. Governor of Virginia, 115 Va. 865, 80 S. E. 753, Ann. Cas. 1915C, 973.
*985Before private business can be regulated it must be affected with some public interest.
Chief Justice Taft in Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 43 S. Ct. 630, 632, 67 L. Ed. 1103, 27 A. L. R. 1280, has classified those cases so affected. They are:
“1. Those which are carried on under the authority of a public grant of privileges which either expressly or impliedly imposes the affirmative duty of rendering a public service demanded by any member of the public. Such are the railroads, other common carriers and public utilities.
“2. Certain occupations, regarded as exceptional, the public interest attaching to which, recognized from earliest times, has survived the period of arbitrary laws by Parliament or colonial legislatures for regulating all trades and callings. Such are those of the keepers of inns, cabs, and gristmills. * * *
“3. Businesses which, though not public at their inception, may be fairly said to have risen to be such and have become subject in consequence to some government regulation. They have come to hold such a peculiar relation to the public that this is superimposed upon them. In the language of the cases, the owner by devoting his business to the public use, in effect grants the public an interest in that use and subjects himself to public regulation to the extent of that interest although the property continues to belong to its private owner and to be entitled to protection accordingly.”
The first and second classes need not be noted.
He went on to say that while the public is in some measure concerned with all lawful business and may suffer, for example, from high prices, that does not affect it with a public interest, and that:
“It has never been supposed, since the adoption of the Constitution, that the business of the butcher, or the baker, the tailor, the wood chopper, 'the mining operator, or the miner was clothed with such a public interest that the price of his product or his wages could be fixed by State regula*986tion.” And this, though the products of the butcher shop, food for human consumption, is everywhere used and is the subject of strict sanitary regulations.
In Fairmount Creamery Co. v. State of Minnesota, 274 U. S. 1, 47 S. Ct. 506, 508, 71 L. Ed. 893, 52 A. L. R. 163, a statute was under review which declared that purchasers of milk, cream or butter-fat should not pay different prices for these products in different parts of the State. This of course was price fixing in a modified form. The court said: “Looking through form to substance, it clearly and unmistakably infringes private rights whose exercise does not ordinarily produce evil consequences, but the reverse.”
In Williams v. Standard Oil Co., 278 U. S. 235, 49 S. Ct. 115, 116, 73 L. Ed. 287, 60 A. L. R. 596, it was held that the sale of gasoline was affected with no public interest. The court said: “It is settled by recent decisions of this court that a State legislature is without constitutional power to fix prices at which commodities may be sold, services rendered, or property used, unless the business or property involved is ‘affected with a public interest’.”
New State Ice Co. v. Liebmann, 285 U. S. 262, 52 S. Ct. 371, 372, 76 L. Ed. 747, deals with the attempt of a State to control the manufacture and sale of ice. Ice is of course widely used and when made from impure water is a carrier of noxious germs. The court held that this business was private and was not affected with the public interest and in the course of its opinion 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; * *
That is to say milk and ice are placed upon a common footing and the dairyman, the butcher and the baker, are cited as types and models of those whose business is essentially private.
The Supreme Court in Tyson & Brother—United Theatre *987Ticket Offices v. Banton, 273 U. S. 418, 47 S. Ct. 426, 428, 71 L. Ed. 718, 58 A. L. R. 1236, undertook to define “public interest” and said:
“A business is not affected with a public interest merely because it is large or because the public are warranted in having a feeling of concern in respect of its maintenance. Nor is the interest meant such as arises from the mere fact that the public derives benefit, accommodation, ease, or enjoyment from the existence or operation of the business; and, while the word has not always been limited narrowly as strictly denoting ‘a right,’ that synonym more nearly than any other expresses the sense in which it is to be understood.”
And again: “The significant requirement is that the property shall be devoted to a use in which the public has an interest, which simply means, as in terms it is expressed at page 130 [of Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77], that it shall be devoted to a ‘public use.’ Stated in another form, a business or property, in order to be affected with a public interest, must be such or be so employed as to justify the conclusion that it has been devoted to a public use and its use thereby, in effect, granted to the public.”
These reasons and these definitions still hold. A man who milks one cow and sells the milk to one man has not devoted that product to public use, and the situation is not changed because he milks two cows and sells to two men. “A business is not affected with a public interest merely because it is large.”
Section 11 of our present Constitution provides that “no person shall be deprived of his property without due process of law,” and the same provision appears in the Fifth and Fourteenth Amendments to the Federal Constitution. With us it first appears in the Constitution of 1902. If it can be said to have been adopted from these Federal provisions, we must endeavor to ascertain how they have been construed by the Federal courts before our adoption, for if it was so copied the construction theretofore given to it would attach. *988Hoffer Bros. v. Smith, 148 Va. 220, 138 S. E. 474; Big Jack Overall Co. v. Bray, 161 Va. 446, 171 S. E. 686.
Case of the State Freight Tax, 15 Wall. 232, 21 L. Ed. 146, was decided by the Supreme Court in 1872. It was there held that the right of one to charge what he pleases for his property or its use is an attribute of ownership. In Tyson & Brother—United Theatre Ticket Offices v. Banton, 273 U. S. 418, 426, 47 S. Ct. 426, 428, 71 L. Ed. 718, 58 A. L. R. 1236, the court was dealing with a statute affecting the price and sale of theatre tickets, and said: “In the endeavor to reach a correct conclusion in respect of this inquiry, it will be helpful, by way of preface, to state certain pertinent considerations. The first of these is that the right of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself, Case of the State Freight Tax, 15 Wall. 232, 278, 21 L. Ed. 146, and, as such, within the protection of the due process of law clauses of the Fifth and Fourteenth Amendments.” That is to say, that this right had been thus construed before our Constitution of 1902 had been adopted and was in its adoption protected, subject to such limitations only as then existed.
In the late case of Nebbia v. People of State of New York, 291 U. S. 502, 54 S. Ct. 505, 507, 78 L. Ed. 940, 89 A. L. R. 1469, a New York statute, in many respects like that in judgment, was upheld, and People v. Nebbia, 262 N. Y. 259, 186 N. E. 694, was affirmed. Before this case can be considered as controlling authority it is necessary to know just what was decided. The court tells us: “The question for decision is whether the Federal Constitution prohibits a State from so fixing the selling price of milk. We first inquire as to the occasion for the legislation and its history.”
It held that there had been no invasion either of the Fifth or of the Fourteenth Amendments of the Federal Constitution, and that is all which it undertakes to hold.
It is, of course, controlling authority in its construction of the Federal Constitution. An opinion by a divided court on matters decided is as controlling as a unanimous judg*989ment. But where, as here, the decision is one of five to four, its persuasive influence by virtue of its judgment alone is not strong. It may or may not be convincing. Certainly four dissenting justices were of opinion that it took advanced ground and overruled its own previous and well considered judgment. However this may be, we are left free to adopt those conclusions which appear to be best supported when we come to pass upon our own constitutional provisions, and this with all deference to that great tribunal. In the majority opinion Munn v. Illinois, etc., 94 U. S. 113, 24 L. Ed. 77, is strongly relied upon as authority to support the provision that sales prices of ordinary commodities may be fixed by statute.
There the court was called upon to decide if the State of Illinois could, by statute, fix a maximum charge for the storage of grain in a public warehouse.
The Constitution of that State (Const. 111. art. 13, sec. 7) made it the duty of the General Assembly to pass laws “for the protection of producers, shippers and receivers of grain, etc.,” and so the statute was passed under an express grant of power written into the State Constitution that, of course, was not violated. The court held that these public warehouses were devoted to a public use and were, therefore, affected with a public interest, but there could have been no intention to hold that all things used generally by the public were so affected for it has since expressly held, for example, that gasoline is not. The test is this, the thing affected must to some extent at least be devoted to a public use. Unless all distinctions are to be wiped away, the distinction between a public use and a general use must be observed as was pointed out by Mr. Justice McReynolds in the Nebbia Case, who said:
“The painstaking effort there to point out that certain businesses like ferries, mills, etc., were subject to legislative control at common law and then to show that warehousing at Chicago occupied like relation to the public would have been pointless if ‘affected with a public interest’ only means that the public has serious concern about the *990perpetuity and success of the undertaking. That is true of almost all ordinary business affairs.”
The man who sells milk has no more devoted it to a public use than has the salesman of ice or meat devoted his ware.
In the Munn Case it is interesting to note that wheat was not declared to be a commodity devoted to a public use but only the instrumentality through which it was handled.
Since the case in judgment was argued, the Supreme Court has handed down a decision as of November 5, 1934, in Hegeman Farms Corp. v. Baldwin, 293 U. S. 163, 55 S. Ct. 7, 8, 79 L. Ed. 29. A minimum price for the sale of milk was fixed by the Milk Control Board, which, by reason of competition, was the maximum price at which dealers could sell. The court said that “the fact is of critical importance that there has been no attempt by the Board to fix a maximum price in respect of any of the transactions subject to its regulatory power.” The complaining dealer did not charge more for his products because he was prevented from doing so by competition, and he charges that the minimum price made his business unprofitable. The court said: “If the designation of a minimum price is within the scope of the police power, expenses or losses made necessary thereby must be borne as an incident, unless the order goes so far beyond the needs of the occasion as to be turned into an act of tyranny. Nothing of the kind is charged. The Fourteenth Amendment does not protect a business against the hazards of competition. Public Service Comm. of Montana v. Great Northern Utilities Co., supra, at p. 135 of 289 U. S., 53 S. Ct. 546 [77 L. Ed. 1080]. It is from hazards of that order, and not from restraints of law capriciously imposed, that the appellant seeks relief. The refuge from its ills is not in constitutional immunities.”" It affirmed the Nebbia Case, for of course that case is now controlling authority in that court. We think that it has no new force or authority on the problem now before us.
If the sale and consumption of milk is affected with a public interest, it is difficult to see why all food products in *991principle are not subject to like public supervision. Those from the butcher shop and from the sea are everywhere sold, and consumed. They rapidly deteriorate, and yet such a claim as to them has so far not been advanced and cannot be sustained unless private control of private business is at an end.
We have had but one case which deals with a legislative attempt to fix prices, Young’s Case, supra. There a statute said that trading stamps should not be given. These stamps were of value and amounted to a rebate on sales prices. The court held that the price or manner in which a merchant saw fit to sell his goods could not be regulated to statute, and said:
“We think it is clear that such a prohibition is an unwarranted interference with the individual liberty which is guaranteed to every citizen, both by our State Constitution and also by the Fourteenth Amendment to the Constitution of the United States. * * * This inalienable right is trenched upon and impaired whenever the legislature prohibits a man from carrying on his business in his own way, provided always, of course, that the business and the mode of carrying it on are not injurious to the public, and provided also that it is not a business which is affected with the public use or interest.”
The statute undertakes to justify itself by stating that we suffer from an “economic emergency.” It would be dangerous to hold that constitutional guaranties were effective only in fair weather, when there is no reason to invoke them. They should stand four-square to all the winds that blow. It is for that purpose that they were written. They serve to curb the heated impulses of the people and to give time in which to form a sober judgment. If they fail in this, they are not worth the ink that prints them. When proven to be oppressive they may be changed by orderly constitutional processes provided.
In Goddin v. Crump, 8 Leigh (35 Va.) 120, the court said:
“It must be admitted that at the institution of civil gov*992ernment founded on the rights of all, the will of the majority must prevail over the opinions and interests of the minority; but when such government is established, its great object is to protect the rights of the minority from the tyranny of the majority—a tyranny more inflexible and implacable t-han the tyranny of a single despot. In the one case the majority feels no sympathy for the minority. In the other case the sufferers have the sympathy of the majority of their fellow subjects, and the force of public opinion may redress their wrongs. To effect this relief against the tyranny of majorities, written constitutions were devised by the American people.”
Taylor v. Stearns, 18 Gratt. (59 Va.) 244, deals with the question of the constitutionality of an act passed by the legislature at its session in 1865-66. This act established a moratorium against the foreclosure of deeds of trust until January 1, 1868. Conditions were then distressing, but were of no avail. The court said:
“Great as might be the sufferings growing out of a judicial sentence against this law, and wide-spread as might be the ruin of individuals and the sacrifice of property under it, they are not, for one moment, to be compared with the evils likely to attend the demoralizing example of a judiciary seeking, however covertly, popular favor by some skillfully disguised compromise of its highest and most imperious duty—that of disdaining every pretext, however plausible, and withstanding every temptation, however strong, to betray, in the slightest particular, the requirements of the State and Federal Constitutions.”
In State v. Stewart, 54 Mont. 504, 171 Pac. 755, 757, Ann. Cas. 1918D, 1101, the court said:
“Whatever is legally done by any public agency at any time must be done either with the sanction or without the inhibition of the Constitution; for, like the national charter, it ‘is a law for rulers and people, equally in war and peace, and * * * no doctrine involving more pernicious consequences was ever invented by the wit of man than that any *993•of its provisions can be suspended,’ without its authority for any reason.”
To the same effect is the judgment in the great case of Ex Parte Milligan, 4 Wall. 2, 18 L. Ed. 281, delivered when passions were high and when emergencies were deemed to be great. War itself cannot change the legislature’s constitutional powers. U. S. v. L. Cohen Grocery Co., 255 U. S. 81, 41 S. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045.
Indeed emergencies or fancied emergencies constantly arise and for the time -absorb our attention and we are prone to “view them with alarm.” Within the lives of living men has been witnessed the period of reconstruction, the panic of 1873, and others scarcely less distressing. Years of plenty and lean years come down in long procession. Problems that today seem portentous are by the next generation as forgotten as Pharaoh’s famine.
Again the act in judgment by its terms was to remain in effect until repeal or until terminated by a proclamation of the Governor. Of course the Governor can no more repeal a law than he can enact one and so we have a legislative declaration of a permanent emergency. An emergency calling for legislative relief is a present pressing necessity; indefinitely prolonged, it drifts into a normal condition and so the statute in judgment is not an emergency statute at all.
Under the statute and under the court’s decree these defendants must secure licenses from the Commission before they can do business at all. If refused, they may appeal to the court, but there are no rules with which they must comply before a license can be obtained. And so upon appeal they cannot state wherein the Commission held they had failed to qualify. They are left, so far as the law is •concerned, to guess at its reasons, adequate or inadequate. In such circumstances there would be nothing left for the court to pass upon. It could not assume as a matter of law that the Commission had erred and so the right of appeal is but a promise to the ear.
Neither rights nor property can be confiscated except af*994ter judicial hearing and after a proper notice. Boggs v. Commonwealth, 76 Va. 989; Fugate v. Weston, 156 Va. 107, 157 S. E. 736.
In Thompson v. Smith, 155 Va. 367, 154 S. E. 579, 584, 71 A. L. R. 604, under review was an ordinance of the city of Lynchburg. That ordinance declared that it should be unlawful for any person, other than a transient, to operate a motor vehicle upon the city streets until he had secured a permit from the chief of police, whose duty it was to carefully examine the applicant as to his qualifications. No permit was to issue until he had satisfied himself by such examination that the applicant could safely and properly operate a car upon the city streets and was familiar with the traffic laws in the State and city. And he was authorized to revoke any permit given where the driver, in his opinion, had become unfit to exercise the privilege granted. This court, speaking through Epes, J., said:
“It is a fundamental principle of our system of government that the rights of men are to be determined by the law itself, and not by the let or leave of administrative officers or bureaus. This principle ought not to be surrendered for convenience or in effect nullified for the sake of expediency. It is the prerogative and function of the legislative branch of the government, whether State or municipal, to determine and declare what the law shall be, and the legislative branch of the government may not divest itself of this function or delegate it to executive or administrative officers.”
He pointed out that, “The majority of the cases lay down the rule that statutes or ordinances vesting discretion in administrative officers and bureaus must lay down rules and tests to guide and control them in the exercise of the discretion granted in order to be valid, * * *.”
He quoted with approval this statement of the law from Mutual Film Corp. v. Industrial Commission of Ohio, 236 U. S. 230, 239, 35 S. Ct. 387, 392, 59 L. Ed. 552, Ann. Cas. 1916C, 296:
“The legislature must declare the policy of the law and *995fix the legal principles which are to control in given cases; but an administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principles apply.”
Of course "details must be left to administrative bureaus, but the policy of the law in general terms must be declared for its guidance. If left to arbitrary discretion we have a government of men and not of laws. Guided by these principles the court in the Thompson Case was of the opinion that the principles under which permits were to issue were sufficiently stated, but that none in detail or in general terms were set out which could guide in their revocation and this notwithstanding the liberality of the rule which obtained in the exercise of police power. Taylor v. Smith, 140 Va. 217, 124 S. E. 259.
These principles are applicable to the case in judgment.
The Commission may issue or refuse a license, but no legal principles are stated which are to control its judgment although its refusal might bankrupt an applicant.
Finally, it is contended that none of the principles stated apply to the sale of milk; that it is sacrosanct and is a food for babies. Certainly as a dairy product it is not their primary food though its substitutional use is wide if not universal. Wide use commonly accompanies a public use, but does not necessarily make it so. Warmth is necessary for the health of infants, and if a supply of fuel were cut off in bitter weather they would probably suffer quite as much as they would if they were denied milk from dairies for a like period of time; and yet it is not claimed that fuel in its varied forms has ever been devoted to a public use. Another answer to this claim is that no one has ever suggested that its sale be forbidden. Indeed, the plaintiffs here are contending that it has actually been curtailed because of the high price at which they are told to sell.
We are told that these views are antiquated, outmoded, unsuited to the more abundant life that lies before us, and should be filed away in some museum of impossible loyalties. But they are of ancient origin and have hitherto met *996every test, theoretical and pragmatic. They are written into our Constitution and are not to be put away by construction. They, have in “high cabal made us what we are.”
From the opinion of the court, as adopted on March 29, , 1935, the following memorandum of dissent was filed:
Memorandum of Dissent, Holt, J.
To hold the act in judgment constitutional one at least of two conclusions is necessary. It must be designed to protect public health, or the production and sale of milk must be affected with a public interest.
Heretofore we reached the conclusion that the first claim was a makeweight. It but gives an odor of sanctity to an act whose plain purpose was to make the production of milk profitable, and this conclusion has been strengthened by subsequent developments. If we are to accept as true uncontradicted statements in the public press, the Milk Commission, since the decision of November 15, 1934, has been kept alive by private contributions certainly not made by consumers.
This action is, in substance, brought by the State of Virginia through an instrumentality of its own, and yet it is a matter of common knowledge that the State itself is purchasing milk produced beyond its borders, bought to be consumed by its blind wards. Of course it would not have them drink that which endangered their health, and yet it gives to them milk whose production is not supervised by this Commission. The answer is that such supervision is wholly unnecessary.
As a matter of fact the reason for this purchase in West Virginia is that the West Virginia producer is willing to undersell and does undersell his Virginia competitor who stands upon the higher price which the Commission’s ruling has enabled him to exact. A large consumer can take advantage of this situation; a small one cannot.
In the cases of Baldwin, Commissioner v. G. A. F. Seelig, *997Inc., and G. A. F. Seelig, Inc. v. Baldwin, Commissioner, decided by the United States Supreme Court on March 4, 1935 (U. S.), 55 S. Ct. 497, 79 L. Ed. 525, that tribunal refused to interfere with the sale of milk produced in Vermont and brought to New York. The New York Commission refused to permit such a sale unless the importers would sign an agreement to conform as to price with the New York statute. This they would not do. Of course if the New York statute was of necessity a sanitary measure enacted in good faith to protect the people’s health, importation could be prohibited. This suggestion the Supreme Court brushed aside, holding it to be in substance, though not in terms, a makeweight.
If there is in this act no genuine effort to promote the people’s health, then to sustain it we must hold that the production and sale of milk is a business affected with a public interest. A business is affected with a public interest when it is devoted to a “public use.” Tyson & Bro.— United Theatre Ticket Offices v. Banton, 273 U. S. 418, 47 S. Ct. 426, 71 L. Ed. 718, 58 A. L. R. 1236. In Chas. Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 43 S. Ct. 630, 632, 67 L. Ed. 1103, 27 A. L. R. 1280, Chief Justice Taft thus states the test:
“In the language of the cases, the owner by devoting his business to the public use, in effect grants the public an interest in that use and subjects himself to public regulations to the extent of that interest although the property continues to belong to its private owner and to be entitled to protection accordingly.”
Not until now has it been held that one who milks his cow and sells his milk has thereby lost the right of private control and has devoted this business, simple and ancient, to a public use.
It may be conceded that price fixing is not at all times and in all circumstances unconstitutional. Some great emergency may clothe with a public interest matters which are ordinarily the subject of private control. In a famine speculators might corner foodstuff and imperil all the peo*998pie. It would, under such conditions, be clothed with a public interest. But such regulations must be designed to promote the interest of the people generally and not the interest of a favored class. A further illustration of this principle is given by housing laws recently upheld. They are distinctly in the interest of people at large who must have a place in which to live, and are not designed to enable landlords to take advantage of their necessities. “Plainly circumstances may so change in time or so differ in space as to clothe with such an interest what at other times and in other places would be a matter of purely private concern.” Block v. Hirsh, 256 U. S. 135, 41 S. Ct. 458, 459, 65 L. Ed. 865, 16 A. L. R. 165.
Those who produce milk for sale are relatively few in number. Its consumption in some form is fairly universal. Public interest is not advanced by statutes designed to limit production at the expense of a helpless public. The fact that a license is necessary and that it may be revoked practically at pleasure tends to monopoly and to limit control to present producers. Monopolies are not favored.
It is true that courts hesitate to declare statutes unconstitutional. They should be still more reluctant to cut away those landmarks of individual rights reaffirmed both in the Bill of Rights and in the Declaration of Independence, charters indigenous to this Commonwealth and which have heretofore been by us so stoutly maintained.
For these reasons and for those stated by us in our original opinion, I am constrained to dissent from the conclusions which, this court has now reached.
Hudgins and Chinn, JJ., concur in this dissent.