Ward v. Big Apple Super Markets of Bolton Road, Inc.

Mobley, Justice,

dissenting. I do not agree with the ruling of the majority that the price fixing provision of the' Milk Control Act violates the due process clause of the Constitution of this State. Mr. Chief Justice Reid, in the majority opinion upholding the price fixing provision of the 1937 Act in Holcombe v. Georgia Milk Producers Confederation, 188 Ga. 358 (3 SE2d 705), in Division 4, expressed my views as to why the Act does not violate the due process clause of the Georgia Constitution. His is a very learned and excellent opinion in which I heartily concur, and to which reference is made for a statement of my views.

I do not agree with the majority that the full bench decision of this court in Harris v. Duncan, 208 Ga. 561 (67 SE2d 692), is binding in this case, for in my opinion that case was bottomed on the erroneous assumption that the emergency provision of the-Act (Ga. L. 1937, p. 247; Code Ann. § 42-523 et seq.) was stricken by an amendment (Ga. L. 1949, pp. 78-87) by striking § 24 of the 1937 Act, as amended, which struck the termination date of the Act. The emergency provision was left in the Act, and by the same amendment striking the termination date of the emergency, the legislature added many additional reasons why an emergency existed and why the milk industry is affected with a public interest.

Further, I am of the opinion that the full bench decision of Fleisher v. Duncan, 195 Ga. 309 (24 SE2d 15), decided January 14, 1943, prior to the decision in Harris v. Duncan, supra, is a binding precedent on this court in the present case. In Fleisher v. Duncan, supra, the Act was specifically attacked as being in violation of the due process clause of the Georgia Constitution, in that the petitioners were “compelled to pay higher prices ... in violation of the rights of said complainants *760to contract for and purchase milk in a free and unregulated price market.” The court held that they could not prevail without showing “that the increases in price were not justified and were not fair and proper as being in accordance with agricultural and economic conditions, or by showing other facts.”'

Obviously, if the court had considered the Act unconstitutional, it would not have made this ruling, as that question would not have been reached. On the contrary, it is clear that the court, as shown in Headnote 3, based its ruling upon an affirmation and acceptance of the previous ruling of the court in the Holcombe and Bohannon cases. The court did pass on the price fixing provision of the Act as against the claim that it violated the due process clause of the State Constitution.

Further, the contention is made that Fleisher v. Duncan, supra, is distinguishable from Harris v. Duncan, supra, because the opinion in the Fleisher case expressly stated that, in view of other rulings, it was unnecessary to rule on the constitutional question. This is a misconstruction of that decision. The court did not say that it was unnecessary to pass upon the constitutionality of the price fixing provision of the Act as against the claim that it violated due process, which the court clearly did, but, on the contrary, stated that it was unnecessary for the court to determine “whether the Act was unconstitutional for any reason assigned that has not already been decided,” and then cited the Holcombe, Bohannon and Gibbs decisions. Fleisher v. Duncan, 195 Ga. 309 (3), supra. The Holcombe and Bohannon cases had both held that the Milk Control Act did not violate the due process clause of the Georgia Constitution. Thus the conclusion is inescapable that the court approved the ruling that the Act does not violate the due process clause of the Georgia Constitution.

Undercofler, Justice, dissenting. The “Milk Control Act” (Ga. L. 1937, p. 247 as amended) has been attacked on constitutional grounds six times including the present suit: Bohannon v. Duncan, 185 Ga. 840 (196 SE 897); Gibbs v. Milk Control Board of Georgia, 185 Ga. 844 (196 SE 791); Holcombe v. Georgia Milk Confederation, 188 Ga. 358 (3 SE2d 705); Fleisher v. Duncan, 195 Ga. 309 (24 SE2d 15); Harris v. Duncan, 208 Ga. *761561 (67 SE2d 692). The constitutionality of the Act was sustained until Harris v. Duncan, supra, where it was held that the price fixing provisions of the Act were unconstitutional because the milk business was not “affected with a public interest.”

The constitutionality of price fixing regulations in the milk industry extends back to Nebbia v. New York, 291 U. S. 502 (54 SC 505, 78 LE 940, 89 ALR 1469) (1933). Harris v. Duncan, supra, followed the minority view in- Nebbia (p. 554) which stated 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.’ Considered affirmatively, ‘it means that 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.’ ” As stated, the court concluded that the milk business did not come within this rule. I believe the rationale of the Harris case is too restrictive and adhere to Bohannon v. Duncan, supra, and Holcombe v. Georgia Milk Conjederation, supra, which upheld the constitutionality of the Georgia Milk Control Act and followed the majority view in the Nebbia case wherein it was stated (p. 523 et seq.), “Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private fight is that of the public to regulate it in the common interest. . . These correlative rights, that of the citizen to exercise exclusive dominion over property and freely to contract about his affairs, and that of the state to regulate the use of property and the conduct of business, are always in collision. No exercise of the private right can be imagined which will not in some respect, however slight, affect the public; no exercise of the legislative prerogative to regulate the conduct of the *762citizen which will not to some extent abridge his liberty or affect his property. But subject only to constitutional restraint the private right must yield to the public need. . . And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. It results that a regulation valid for one sort of business, or in given circumstances, may be invalid for another sort, or for the same business under other circumstances, because the reasonableness of each regulation depends upon the relevant facts. . . The thought seems nevertheless to have persisted that there is something peculiarly sacrosanct about the price one may charge for what he makes or sells, and that, however able to regulate other elements of manufacture or trade, with incidental effect upon price, the state is incapable of directly controlling the price itself. This view was negatived many years ago. . . In several of the decisions of this court wherein the expressions ‘affected with a public interest,’ and ‘clothed with a public use,’ have been brought forward as the criteria of the validity of price control, it has been admitted that they are not susceptible of definition and form an unsatisfactory test of the constitutionality of legislation directed at business practices or prices. These decisions must rest, finally, upon the basis that the requirements of due process were not met because the laws were found arbitrary in their operation and effect. But there can be no doubt that upon proper occasion and by appropriate measures the state may regulate a business in any of its aspects, including the prices to be charged for the products or commodities it sells. . . The legislature is primarily the judge of the necessity of such an enactment, that every possible presumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power.” As was said in Holcombe v. Georgia Milk Confederation, supra, (p. 375), “The price is therefore a means, and not an end. The Act as a whole (Ga. L. 1937, p. 260) seems to be designed, not to secure the greater or less price, but to secure an adequate *763supply: of wholesome milk; and if the'price be one of the ¡appropriate means, we can not condemn it.” I cannot say that the price fixing provisions of the Georgia Milk Control Act. are unreasonable, arbitrary or capricious or have no relation to the object sought to be obtained in view of the legislative facts found therein including the declaration of an emergency, .the previous similar holdings of this court on the same issue, the holdings of the Supreme Court of the United States, and the approval of a majority of the state supreme courts construing the validity of similar milk control Acts.

Harris v. Duncan, supra, is a full bench decision; however, I do not feel bound by it since it is predicated on the “Milk. Control Act” (Ga. L. 1937, p. 247) as amended “with the emergency feature thereof stricken by the Act of 1949, p. 78.” In my opinion this is an erroneous statement of fact because the Act of 1949 (Ga. L. 1949, p. 78) did not strike the legislature’s declaration of an emergency but only deleted the expiration date of the Act. As a matter of fact, the Act of 1949 not only reaffirmed the declaration of legislative policy finding facts that constituted ano emergency contained in the original Act of 1937 but added thereto a great number of additional reasons and findings of fact in support thereof. It can hardly be said that the legislature in the Act of 1949 intended to strike the emergency feature of the Act when it repealed only the expiration date of the Act, and when in the same Act they reaffirmed and amplified the emergency declaration.