dissenting.
The majority and the concurring opinions deplare that the State Milk Commission arbitrarily denied Victoria Rountree, trading as Rountree Dairy, a license as distributor of milk in the Suffolk area. The evidence tending to support the issues of fact was in sharp conflict. The majority opinions state as facts only the evidence tending to support appellant’s contention. There is ample evidence to support the action of the Milk Commission and its statement of fact, which is as follows:
“There are at present one distributor, Greenfield Dairy;, and two producer-distributors, R. R. Howell and A. Obici, Bay Point Farm Dairy. The records indicate that Rountree Dairy held a license as a producer-distributor in the Suffolk Market from April 27, 1939, through June 30, 1942. During which period of time the records of the Milk Commission’s, office show a number of violations of the Milk Commission’s-Rules and Regulations applying to the distribution of milk in that market. On July 1, 1942, the Rountree Dairy became a wholesale producer with a base at the Nansemond Coopera*793tive Dairy, refinquishing their license as a distributor in that market. On May 1, 1943, Rountree Dairy withdrew its milk from the Nansemond Cooperative Dairy and the Suffolk Market without formal notice to the State Milk Commission or approval of the Commission. The withdrawal of this milk from the market by the Rountree Dairy created a shortage in the market to such an extent that it was impossible for the Nansemond Cooperative Dairy to continue home delivery for the consumers in this market. Since the withdrawal of this milk from the market by the applicant, it has been necessary to re-organize the distribution of milk in the Suffolk Market and to secure additional milk from other sources in the amount of 1600 gallons weekly to supply this market. It has been further shown that the present -licensee in the Suffolk Market, the Greenfield Dairy, has offered to purchase the milk produced by the Rountree Dairy and to recommend to the Commission that a base be set up in that market for the entire production of that Dairy. , .
“It further appears to the Commission that the granting of a distributor’s license to the Rountree Dairy would cause a further duplication of delivery and the overlapping of routes which would be an additional cost, of serving that market with milk. Such duplications and overlapping of routes would be in direct conflict with the Orders and Regulations of the Office of Defense Transportation and the Office of Price Administration in the use of automotive equipment, gasoline and tires.”
In Reynolds v. Milk Comm., 163 Va. 957, 977, 978, 179 S. E. 507, this court held:
“The Milk Commission of Virginia is declared to be an instrumentality of the Commonwealth by an act of the General 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 hy it. A distributor is defined as one who sells milk to con*794sumers. 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.”
The Milk Commission is a responsible board created by law for the express purpose of regulating the production and distribution of milk. Its finding of fact on conflicting evidence is entitled to the same consideration and weight as given any other duly organized board. It is not the function of this.court to act as a jury in passing upon conflicting evidence. If there is substantial evidence to support the finding of fact, such finding should be, and usually is, regarded as binding upon this court on review. There is no reason to apply a different rule to the finding of fact by the. Milk Commission.
For these reasons, I think the order of the Milk Commission should be affirmed.
Gregory, J., concurring in dissent.