concurring.
I am in complete accord with the conclusions which our court has reached, and for these reasons:
The record in this case takes up 336 pages of printed matter, together with voluminous exhibits. With brushwood cut away, its annals are short and simple: Should *789Victoria Rountree be given the right to sell her dairy-products by wholesale generally or at retail in Suffolk?
What she did was this: She asked the State Milk Commission for license to sell this product as a producer-distributor. The Commission’s answer was “No.” On June 17, 1943, it entered this order:
“After giving careful consideration to the foregoing facts, it is the opinion of the State Milk Commission that the application of Rountree Dairy for a license to become a distributor in the Suffolk Market be rejected, and that the Rountree Dairy should become a wholesale producer delivering its milk to the Greenfield Dairy and a base be fixed in accordance with the rules and regulations applying to that market.”
That order, on rehearing, it reaffirmed on August 18, 1944. It further said:
“Upon application of the Rountree Dairy, a producer’s license will be granted, a base established for that Dairy and assigned to a distributor in the Suffolk Market.”
Regulation No. 8, promulgated by the Commission on February 1, 1944,' declares in part:
“4. No producer’s license shall be granted an applicant who on the date of the application is selling milk to any person, firm, corporation or association operating outside of the production area in which the applicant is producing milk, without the consent of the State Milk Commission.
“5. The sale by a distributor, a producer-distributor, or a producer to any one other than a distributor or producer-distributor operating exclusively within the sales area, without the consent of the State Milk Commission, shall constitute a ground for the revocation of the license of a distributor, producer-distributor or producer.”
“No person, firm or corporation licensed under this regulation shall export milk out of a production area without the consent of the State Milk Commission.”
From these orders it is plain that the Commission was willing to give to the Rountree Dairy a producer’s license, provided it would sell its products to the Greenfield Dairy, *790but was unwilling to give it a distributor’s license to retail its own products in the town of Suffolk or to anybody else.
The reason assigned by the Commission for refusal to give to this petitioner the right to sell her dairy products by retail is that the market there was already amply and adequately supplied.
Now we are blandly told that this supply is adequate. One of the reasons which makes it adequate is that under power conferred on Greenfield by the Commission it is getting enough milk from the Rountree Dairy to make it so. However, the Greenfield Dairy is permitted to purchase and does purchase milk from adjoining areas where conditions are identical and milk from distant areas, as far away as Harrisonburg and indeed from distant states, at prices higher than the Rountree Dairy is permitted to charge.
Now it is said that Rountree Dairy can sell to any distributor outside the Suffolk area; this in the face of the order of June 17, 1943, which said that “the Rountree Dairy should become a wholesale producer, delivering its milk to the Greenfield Dairy and (at) a rate to be affixed according to the rules and regulations applying to that market,” which ruling was in terms reaffirmed by the Commission on August 18, 1944, while on February 1, 1944, we see that if Rountree sells to one other than Greenfield that that “shall, constitute a ground for revocation of the license of a distributor, producer-distributor or producer.” And this in view of the fact that it once went into a court when Rountree was selling in the Hampton area outside the Suffolk area and obtained a “cease and desist” order, which order, so far as this record shows, is still in force.
There is an engaging simplicity about the suggestion that: Rountree may now take milk to adjoining counties and there sell it at an advanced price to Greenfield or to anybody else who wants to buy it. Moreover, this is something new! One does not have to be even the son of a prophet to kno w what would have happened to Rountree had she before the institution of this suit undertaken to sell milk outside of the *791Suffolk area. It is necessary only to remember what did happen when she did that in the Hampton area.
Appellant is the owner of a 700-acre farm within four miles of Suffolk and is the largest producer of dairy products in Nansemond county. That dairy is one of the oldest dairies there.
From these rulings of the Commission this situation now obtains:
The Rountree Dairy is forbidden—certainly before the institution of this suit—to sell its own dairy products by retail in Suffolk but is forced to sell it at wholesale to a competitor and rival that this competitor may sell it by retail in the forbidden area. But this is not all.
The Rountree Dairy, if permitted to do so, could sell its dairy products at wholesale to distributors in adjoining areas, Southampton county and Norfolk county, at a higher price than she now receives from the Greenfield Dairy, while Greenfield is actually paying to outside producers more than it is paying to Rountree.
As a matter of fact, the heavy weight of testimony is to the effect that retail delivery in the Suffolk area is inadequate. We find that the appellee has introduced the evidence of probably a dozen substantial witnesses, one of whom is a professor from Blacksburg, while over three hundred citizens of Suffolk have complained of a shortage in distribution. The testimony of one witness and a prominent citizen that he is getting enough milk has little value against that of another, possibly from a less exalted station, who says “that is not the case with me.”
But one retailer, the Greenfield Dairy, is supplying the heavy weight of retail milk to Suffolk, while in Staunton— a town about the size of Suffolk—this retail business is divided among four or five producers.
In construing statutes and rules, we take into consideration not merely what has been done but what may be done. In this case- the Commission may in every area limit retail distribution to one dealer and thus open the way to undesirable possibilities. In these days nobody loves monopolies.
*792In appellee’s brief it is said that a letter written to the Commission by counsel for the appellant is of such a character that “if written to a court of law, the court would not only have been warranted, but, also would have been required, to commit the writer for contempt.” Conceding for the sake of argument that it is somewhat contumacious, the misdeeds of counsel should not be visited upon his clients.
By indirection we are told that the Commission operates under OPA and must keep within the shadow of its wing. OPA has been charged with many sins, but we are not yet prepared to believe that it would fix the wholesale price of milk at one figure in Southampton county and at another in Nansemond county.
Most bureaus have as hall-marks two outstanding characteristics: Two things greater than all things are—immortality and power.