This is an appeal by the plaintiff from a judgment of the circuit court which quashed a writ of review issued by that court for the purpose of subjecting to its review an order (Administrative Order No. 2881) entered by the defendant, Thomas L. Ohlsen, Milk Marketing Administrator. The proceeding was instituted pursuant to § 34-1008, OCLA, which is a part of legislation which was known as the Milk Control Act (§§ 34-1001 to and including 34-1018, OCLA, as amended) until Oregon Laws, 1949, Chapter 547, Section 4, changed its name to Milk Marketing Act.
The plaintiff is Safeway Stores, Incorporated, which operates a chain of food stores, five of which are located in Salem. The defendant, when this proceeding was instituted, was the aforementioned Thomas L. Ohlsen, incumbent of the office of Milk Marketing Administrator (Oregon Laws, 1949, Ch. 547, § 1). The duties performed by the Milk Marketing Administrator were transferred by Oregon Laws, 1951, Chapter 637, Section 1, to the State Board of Agriculture. The latter has been substituted as the party defendant (respondent). Hereafter, when we use the term “the defendant” we shall mean the Milk Marketing Administrator, if the incident under scrutiny occurred prior to the time the 1951 enactment became effective; otherwise we shall mean the State Board of Agriculture. Two corporations which are engaged in the processing and distribution of milk in Salem, and to which the record refers as interveners, entered the proceeding while it was pending before the defendant. They are Curly’s Dairy, Inc., and Dairy Cooperative Association. The Dairy Cooperative Association has *47a plant in Salem which is known by the trade name of its products, Mayflower. We shall hereafter refer .to that intervener as Mayflower and to the other as Curly.
Administrative Order No. 2881 was entered by the defendant January 18, 1950. It denied the plaintiff, according to the order’s recitals,
“a license to process fluid milk in a processing plant owned by it, located in the City of Portland, * * * for distribution of said processed mill?: to its stores located in the Salem, Marion County, Sales Area * * *. It is hereby considered and ordered that the application of the Lucerne Milk Company, a Division of Safeway Stores, Incorporated, for a processor-distributor license to distribute and sell fluid milk and cream in the Salem, Marion County, Sales Area, be and the same is hereby denied.”
The denial resulted from the defendant’s view that Salem is adequately served by milk proeessors-distributors and that a grant to the plaintiff of its requested license would be prejudicial to the economic stability of the milk industry. Thus, it is seen that the defendant believes that he possesses economic control over milk processors. The latter pasteurize, bottle, etc., the raw milk which they obtain from producers (dairymen).
The validity of the order (No. 2881) from which we just quoted was the object of attack by the proceeding for a writ of review and is the object of attack by this appeal. The entry of the order was preceded by a hearing which the defendant conducted December 8, 1949. At the close of the hearing he entered findings of fact, and still later made the order. As we have indicated, the circuit court quashed the writ which challenged the order and thereby sustained its validity. *48The judgment which quashed the writ is contested by the appeal under consideration.
The fundamental principles which govern this appeal stem from our Milk Marketing Act which became a part of our laws by the enactment of Chapter 27, Oregon Laws, Second Special Session, 1933, with its subsequent amendments. The features of that legislation are set forth and analyzed in Savage v. Martin, 161 Or 660, 91 P2d 273; State ex rel. Peterson v. Martin, 180 Or 459, 176 P2d 636; and Sunshine Dairy v. Peterson, 183 Or 305, 193 P2d 543.
The plaintiff owns and operates in Portland a milk processing plant known as the Lucerne Milk Company. That name is merely the appellation which has become attached to the plant and does not denote a separate corporation nor any other form of entity. The product of the plant is called Lucerne milk. The Lucerne plant processes the milk which the plaintiff sells in its Portland stores. The defendant does not question any detail or feature of the plant such as cleanliness or suitability. Lucerne milk, the product of the plaintiff’s plant, contains 3.8 per cent butterfat and is sold in paper cartons at the same price as others demand for 3.5 per cent milk contained in bottles. The plaintiff does not operate a delivery system and, hence, its customers carry away the items purchased, such as milk. Mayflower and Curly milk contains not less than 3.2 per cent and not more than 3.5 per cent butterfat. When it is sold in paper containers, an extra charge of one half cent per quart is exacted. Both of those concerns operate delivery systems.
The plaintiff has no processing plant in Salem and is prohibited, under the defendant’s rulings, from supplying its Salem stores with milk processed in its *49Portland plant. The defendant promulgated a regulation, reading:
“No milk dealer or distributor who is licensed for a specific market and sales area may lawfully purchase milk from producers not qualified for the market in which the said milk dealer or distributor is licensed, nor may such distributor or milk dealer lawfully sell to any other person, distributor or milk dealer not licensed in said market any portion of said fluid milk and/or cream suitable for the bottle and can trade for resale, without first obtaining the written consent of the Department of Agriculture, Milk Control Section.”
In employing that rule, the defendant deems that the delivery of milk from the Lucerne plant to any of the plaintiff’s stores is a sale. That construction has prevented the plaintiff from having milk purchased in the Salem production area processed in the Lucerne plant and then returned to Salem for sale in the plaintiff’s Salem stores. Thus, its Salem stores can not sell milk bearing the trade name Lucerne.
Since the plaintiff is prohibited by the defendant from bringing to Salem milk processed in its Portland plant, whether or not it was purchased in its raw condition in the Salem production area, it has been forced to supply its Salem stores with milk purchased from Salem processors. Curly supplies it with about 40 per cent of the milk it resells in its Salem stores and Mayflower with the remainder. Since no milk is available in Salem containing more than 3.5 per cent butterfat, the plaintiff cannot offer its trade milk containing the butterfat present in its Lucerne milk, that is, 3.8 per cent. We said that milk is not available in Salem containing more than 3.5 per cent butterfat. The defendant himself declared during the hearing, “There is no 3.8 milk being sold in Salem.” More than *50one milk dealer offers to the trade in Portland milk containing 3.8 per cent bntterfat, and the record shows that “quite a little” 5 per cent milk is sold in that city.
November 28, 1949, the plaintiff requested of the defendant that
“permission be granted to Safeway Stores to sell Lucerne milk and cream in its Salem stores which has been processed and bottled in the Safeway Lucerne plant in Portland.
“In mailing this request, we wish it to be clearly understood by you that the amount of milk which will be sold in the Salem stores will be acquired from producers already holding a quota upon the Salem market.”
In ruling upon that request, the defendant declared:
“I consider this request to be an extension of your sales area to include the Salem sales area under your present processor-distributor license.
“In view of the fact that such a move would to some extent affect distributors presently licensed in the Salem sales area, I deem it advisable to hold a hearing upon your application. # * *”
As a result of that ruling, the hearing was held which we have mentioned. It occurred December 8, 1949.
To make matters clear, we add that what the plaintiff wished to do was (1) purchase from Salem producer quota holders its daily milk requirements; (2) transport the Salem-purchased milk to its Portland Lucerne plant; (3) process the milk in that plant; and (4) return the processed milk to Salem and deliver it to its Salem stores. The plaintiff’s protest that no hearing was necessary was overruled. Its proposal to purchase the needed raw milk in the Salem production area was made in order to satisfy the situation re-*51suiting from the fact that the defendant has placed Portland and Salem in separate milk production areas.
All five of the plaintiff’s Salem stores possess licenses issued by the defendant which authorize them to sell milk. The plaintiff’s Portland processing plant [Lucerne] has a license issued by the defendant which authorizes it to process milk for sale in the Portland market area only. The latter includes all of Portland and the five-mile contiguous territory. The Salem market area includes, in addition to the city, the five-mile zone immediately adjacent to it.
We shall now consider the first assignment of error.
It reads:
“The Court erred in quashing and dismissing the writ and sustaining the administrator’s Order No. 2881, for the reason that the administrator had no power or jurisdiction under the Milk Control Act to prevent the appellant, a licensed milk dealer on the Salem market, from processing milk in its Portland plant which it had purchased from producers holding a quota on the Salem market and which appellant would sell in its licensed stores in Salem.”
It has been argued, not, however, by the defendant: “The plaintiff has not challenged the right of the defendant to inquire whether the granting of the license would adversely affect the market.” The issues which underlie this proceeding had their genesis November 28, 1949, when, as we have indicated, the plaintiff applied to the defendant for permission to sell in its Salem stores milk purchased in that area and processed in the Portland Lucerne plant. November 29,1949, the defendant replied to the application by announcing that he would conduct a hearing upon it. The plaintiff at once objected. It protested that its application *52called for no hearing and required the defendant to exercise no powers except his common licensing power. It renewed its protest and objections upon the opening of the hearing. At that time its counsel declared:
“* ® * Therefore, we wish the record to show clearly, first, that this hearing was not requested by Safeway Stores, Incorporated, and, second, that we are participating in this hearing under a full reservation of rights to challenge the validity of this hearing in all particulars, and to challenge the Administration’s determination of the necessity therefor.”
The plaintiff’s petition for a writ of review, in specifying its charges of error against the defendant, included this:
“Section 34-1006, O. C. L. A., specifies all the grounds upon which a license may be denied, and defendant did not deny said license on any of the grounds therein specified.”
The charge just quoted, as will appear later, ushered in the entire case. It is crucial. We are satisfied that the record calls for a determination as to whether or not the defendant may deny a license to a would-be processor solely upon the ground that he [defendant] believes that the community which the newcomer wishes to serve has adequate milk service. In fact, we have no choice except to determine that very issue; for if the Milk Marketing Act does not authorize the defendant to afford present processors the benefit of restricted competition, then the findings of fact entered by the defendant, which are based solely upon the premise that Salem has a sufficient number of processing plants, demand that the challenged order must be vacated. The findings will be quoted in a later part of this opinion. The fact that the defendant denied the *53plaintiff’s application for no reason other than a finding that a grant to the plaintiff of its application would disturb existing conditions requires us to construe the Milk Marketing Act and reverse the challenged order, if the Act does not confer upon the defendant economic control over processors. Surely, if the findings of fact do not support an order which is challenged by a writ of review, the reviewing court must vacate the order: School District No. 68 et al. v. Hoskins, et al., 194 Or 301, 240 P2d 949. A writ of review calls upon the court to match the findings of fact with the agency order and if the former do not justify the latter, the order must be held illegal. Thus, this ease calls for us to construe the Act for the purpose of determining whether or not the findings afford a proper basis for the order of denial.
We shall now review the evidence which was presented to the defendant. We make the review, not for the purpose of altering or supplanting the findings of fact which he entered, but only for the purpose of facilitating an understanding of them.
In applying the surplus milk formula of § 34-1013, OCLA, and in thereby determining the net amount payable to producers in the Salem area, the defendant has created in the Salem sales market two pools, as that term is employed in § 34-1013; one is known as the Curly pool and the other as the Mayflower pool. Each pool is recognized by the defendant and those concerned with it as though it were a separate market. After an accounting has been had for its surplus, each pool determines the net amount receivable by those who supply milk to it. Upon the other hand, there is only one pool in Portland, and its results govern the net amount which all producers in the area receive. *54Unlike the situation in Portland, there is no single pool for Salem. To make matters clear, the defendant has not employed in Salem his pooling power in such a way that all producers share equally the ill effects of total surplus. The Salem production area, as fixed by the defendant, embraces the counties of Lincoln, Benton, Linn, Polk, Marion and Yamhill, although it shares the three last named counties with the Portland production area. The milk which Curly and Mayflower process comes from the Salem production area. In the recurring accounting periods, the surplus milk in Curly’s pool and that in the Mayflower pool is dealt with separately. The plaintiff, if its requested permission is granted, will enter the Salem production area and purchase enough milk from producers in that area to supply the needs of its five Salem stores. Its operations will be independent of the Curly and the Mayflower pools unless the defendant makes readjustments. The producers who will sell it milk will be free from the readjustments in return to which the producers are subject who supply Curly and Mayflower.
The plaintiff is not seeldng to take out of Salem or bring into it any milk that is not already produced for that market. All that it wishes to do is to process in Portland and then return to Salem milk produced in Salem but now processed in the plants of the interveners. If its plant, instead of being in Portland, was in Salem, the effect of the plaintiff’s contemplated operations upon milk production would be no different.
The plaintiff proposes, as we have said, to haul the milk to Portland which it will purchase in the Salem area, process it in the Lucerne plant and then deliver .the processed milk to its Salem stores. The plaintiff will sell its 3.8 per cent milk in paper containers at the *55same price as 3.5 per cent milk which others place in bottles.
Although the findings state that “there are at the present time seven processor-distributors and producer-distributors duly licensed in the Salem market who have modern equipment and facilities of adequate capacity to serve all of the needs of the same market,” the evidence reveals the names of only two of them, that is, Curly and Mayflower. It divulges nothing about the remaining five. It does not indicate whether those five have plants or delivery facilities. It seems clear that only Curly and Mayflower have sizeable volume of business. Curly’s Dairy, Inc., is a corporation of which Mr. Hans Hoffstetter is the president. The manager of Mayflower is Mr. Will W. Henry. The Dairy Cooperative Association, to which we have been referring as Mayflower, is a form of cooperative enterprise in which the producers who supply it with milk gain or lose in the event profits or losses occur in the processing, administering and delivery phases of the enterprise. Producers who supply Curly do not share in the gains or losses arising from the conduct of that business. They are paid the prices established by the defendant; subject, of course, to readjustment if the period’s operations result in a surplus which must be sold at a low price.
The plaintiff’s total purchases of milk for its Salem stores was 2.37 per cent of the entire amount of milk processed in five Salem distributing plants. We have mentioned the fact that the findings state that there are “seven processor-distributors and producer-distributors duly licensed in the Salem market. ’ ’ When we said that the plaintiff’s purchases aggregated 2.37 per cent of the total of the five Salem distributing plants, we *56limited ourselves to the five because the only information released by the defendant concerned them. The record warrants a belief that the volume of the two licensees who are not included among the seven is negligible.
An item of evidence which was developed in the hearing of a previous application, and which was made a part of the record of this case, follows: “There is not any very great difference between the cost of operating on the Portland market and on the Salem market so far as the processing and delivery, selling and administrative expenses are concerned.” Other evidence indicated that the difference is negligible. One witness upon that subject couched his testimony in such uncertain terms that we are unable to determine whether it supplements the statement just quoted or is adverse to it.
Mr. Henry and Mr. Hoffstetter stated that if the plaintiff withdrew its purchases from their plants and offered in its Salem stores 3.8 per cent paper-contained milk at the same price as 3.5 per cent Salem-bottled milk, the effect upon their volume and net income would be adverse. Both dwelled upon the fact that if the plaintiff withdrew its purchases from their plants, the volume of milk processed by them would be less, and claimed that as a result of their smaller volume their costs per unit [such as a quart] would increase. Mr. Henry, especially, predicted that diminishing returns Avould have the ultimate effect of compelling producers to accept a lesser price for their milk. Neither was certain that if the plaintiff is authorized to sell 3.8 per cent Lucerne mill?: in Salem at the same price as 3.5 per cent local milk they Avill find it necessary to meet the plaintiff’s competition. Mayflower, which has a plant *57in Portland, has not met the plaintiff’s competition in that city, except to charge for milk in paper containers the same price as for milk in bottles. Producers in the Portland area have not suffered a reduction in price on account of the plaintiff’s activities.
We shall confine our review of the evidence to the foregoing. The transcript contains additional facts, but, since they received no mention in the defendant’s findings, we are not at liberty to consider them. We shall presently quote the findings of fact. We are bound by the latter to the extent that they are supported by substantial evidence.
The plaintiff, it will be observed, wishes to deal with the Salem trade in a manner different from Curly and Mayflower. For example, its milk will contain 3.8 per cent butterfat and will bear the name “Lucerne”. The mill? now available in Salem aims to contain 3.5 per cent butterfat but at times has only 3.2 per cent. At present, milk purchased in paper cartons in Salem costs the buyer one half cent more than milk in bottles. The plaintiff will eliminate that differential if the buyer chooses Lucerne milk. The latter, unlike Curly’s and Mayflower’s, will not be available through delivery service. In lieu of milk delivery, the plaintiff will give its customers more butterfat. In buying from producers, the plaintiff will not be subject to the effects of pools, unless the defendant alters his regulations whereby some producers supply the Curly pool and others the Mayflower.
Following are the findings of fact entered by the defendant:
“This matter came on regularly before me on the application of Lucerne Milk Company, a division of Safeway Stores, Incorporated, for a license *58to process fluid mill?; in a processing plant owned by it, located in tbe City of Portland, Oregon, and for distribution of said processed milk to its stores located in tbe Salem, Marion County, Sales Area. 9? it*
‘‘ 1. That Section 34-1009, O.C.L.A., vests power and authority in the Milk Marketing Administrator to classify licenses, with power to issue licenses to dealers, to stores or manufacturers, to sell milk limited to a particular city or village, or to a particular market or markets within the state, and may define what shall constitute a natural marketing area.
“2. That Official Order G. O. No. 127, amending General Order G. O. No. 116, defines and prescribes the Portland Sales Area, and that the Lucerne Mill?; Company, a Division of Safeway Stores, Incorporated, for sometime prior and at the time of the hearing held a processor-distributor license, empowering it to process, sell and distribute fluid milk and cream in the Portland Sales Area as defined by said order.
“3. That Official Order G. O. No. 62 defines the Marion County Marketing Area No. 1 as that area within the corporate limits of the City of Salem, Oregon, and the area within lines paralleling the boundary line of the City of Salem, drawn five miles distance outside therefrom, and the extension of said lines necessary to enclose the area.
“4. That the retail stores owned and operated by Safeway Stores, Incorporated, located in the Salem Sales Area have at all times been supplied by duly licensed distributors located in said Salem, Marion County, Sales Area, with the daily requirements of fluid milk and cream sold by said Safeway Stores.
“5. That said licensed distributors for the Salem, Marion County, Sales Area have at all times adequately supplied the Safeway Stores in Salem with its bottled milk and cream requirements, of *59accepted standards and quality, and in accordance with price schedules and other regulations in effect in said market.
“6. That there are at the present time seven processor-distributor and producer-distributors duly licensed in the Salem Market who have modern equipment and facilities of adequate capacity to serve all of the needs of the said market.
“7. That the proposal of the applicant to receive milk from producers located in and qualified for the Salem Sales Area, for processing in their Portland plant, and then to transport and distribute such milk to its Salem stores, would entail additional and increasing handling costs, and is not in the best interests of a stabilized market, nor in the interests of the public.
“8. That the granting of an additional distributor license will jeopardize the maintainance [sic] of the present distributive facilities now adequately supplying the needs of the consumers in said Salem Sales Area, and that by the displacement of sales of the Salem licensed distributors now processing and bottling the requirements of milk and cream of Safeway Stores in Salem, would to some extent increase their processing and distributing costs through a decrease in their volume, and thereby tend towards an increase through a decrease in their volume, and thereby tend towards an increase in the price to the consumers, or a less price to the producer, or both, which in the judgment of the undersigned is not in the public interest.
“9. That the proposal of the applicant to take only its requirements from producers in Salem, to process same in its Portland plant, and then distribute same to the consumers through its stores, will in the judgment of the undersigned throw the burden of the surplus required in said market, so as to meet the varying demands of the public, upon all producers other than those supplying Safeway Stores, creating discrimination and favoritism, and *60will tend towards a demoralization, both of the production and distribution of fluid milk in said market.
‘ ‘ 10. That the introduction of paper containers has undoubtedly facilitated shipment of fluid mill?; and cream to places far removed from processing plants, and it is the judgment of the undersigned that the granting of this application would tend towards monopolization of the distribution of fluid milk and cream by large metropolitan processor-distributors, ultimately forcing small distributors out of business. It is the opinion of the undersigned that such tendency is not in the public interest.”
We shall pause a moment to analyze some of the findings. We think that it is evident that statements such as “not in the public interest” are not findings of fact. If Findings 4 and 5 mean no more than that the plaintiff’s five Salem stores have been regularly supplied by the interveners with a sufficient quantity of milk and at prices which do not violate the defendant’s regulations, they are in accord with the evidence. The findings, however, do not reflect the fact that the defendant prevents the plaintiff from procuring for its Salem stores mill?: containing 3.8 per cent butterfat. Likewise, they do not mention that the plaintiff wishes to sell to its Salem customers milk under its established trade name of Lucerne and offer it in paper containers at the same price as others charge for bottle-contained milk. The seventh finding says that the plaintiff’s plan “would entail additional and increasing handling costs”. But it does not disclose whether the “additional and increasing handling costs” will be incurred by the plaintiff, the interveners or some other milk dealer. We think that the finding was written because the transportation of the Salem-produced milk to the Portland plant and its return to Salem in processed form would subject the *61plaintiff to “additional and increasing handling costs”; that is, to the transportation expense. However, since the Portland plant would thereby secure a larger volume, the cost of processing per unit [such as a quart] would be reduced. It may be that the operation in its entirety would be for the plaintiff an economy measure. No one can determine from the scant evidence in the record the net result which the contemplated venture would yield. We are unable to ascertain from the eighth finding how the plaintiff’s operations, if authorized by the defendant, could result in “a less price to the producer”. The defendant, as we shall presently show by quotation from the Milk Marketing Act, has the power to prescribe the price which milk dealers must pay to milk producers. Unless the defendant orders milk dealers to pay milk producers a less amount than at present, there can be no change in the producer’s receipts. At the time of the hearing § 34-1012 said:
“* * * the board shall, by order fix the minimum wholesale and retail prices to be charged for milk handled and sold within the state for home consumption in fluid form and including the following classes: (a) By producers * * # to milk dealers; * * V’
The eighth finding, now under consideration, says that if the plaintiff withdraws its purchases from “the Salem licensed distributors now processing and bottling the requirements of milk and cream of Safeway Stores in Salem,” those two processors [Curly and Mayflower] would suffer an increase in “their processing and distributing costs through a decrease in their volume.” From that fact the defendant drew the conclusion of which we have already taken notice; that is, that the adverse effect suffered by the returns of the *62processor-distributors may eventually be passed on to the producer in the form of lower prices for raw milk. But the finding does not indicate that the plaintiff is forever bound to purchase its requirements from Curly and Mayflower. As will presently appear, we deem that finding irrelevant, but, since the defendant’s order is based upon a claim that he can afford processors the benefit of restricted competition, we shall pause for a moment upon the finding. If the plaintiff transfers its purchases from Curly and Mayflower to any other Salem processor, whether or not its application is granted, the evil consequence of which the findings speak would occur; that is, the transfer of the plaintiff’s business from Curly and Mayflower to some other processor would “jeopardize the maintenance of the present distributive facilities now adequately supplying the needs of the consumers in said Salem Sales Area.” Thus, Curly and Mayflower would suffer as badly if the plaintiff transfers its purchases to some other Salem processor as if it does its processing in its Portland Lucerne plant. Or, if the plaintiff discontinued the sale of processed milk and sold only non-processed [see Savage v. Martini, 161 Or 26 666, 667 and 707], no Salem processor would secure any business whatever from it. Prom the above, it is evident that the conclusion drawn by the eighth finding [that producers may receive a smaller price for their milk if the plaintiff’s application is granted] can be sustained only if (1) there is no other source in Salem to which the plaintiff can resort for processed milk [the findings state that there are seven processors in Salem], or (2) the plaintiff is bound forever to make its purchases from Curly and Mayflower. One more observation: If the plaintiff shifted its purchases and bought all of its requirements from Curly and nothing from Mayflower, *63the economy of both of those concerns -would be materially affected. If the plaintiff made that shift in its purchases, Curly would gain the benefit of augmented volume and its pool would possibly contain no surplus whatever. Upon the other hand, Mayflower’s volume under such conditions would suffer a severe decline and the surplus in its pool would be increased to an extent very hurtful to the producers who supply it. We shall proceed no further with an analysis of the economy which underlies the eighth finding. The foregoing analysis yields a preview of the results that would follow if this court held that the defendant has economic control over processors and can prevent dislocations in the conditions under which they operate. Such a holding would enable him to prescribe for Salem a static condition and that, of course, would be tantamount to an order banning enterprise. We will now consider the ninth finding. The plight it mentions results from the fact that notwithstanding the demands of § 34-1013 the defendant has failed to provide in Salem “for the' pooling and averaging of all returns from the sales of fluid milk * # * and the payment to all producers of a uniform pool price * * His failure to comply with those requirements has created for the plaintiff an opportunity to purchase raw milk from producers without being subject to the after effect of pools and their surpluses. The fault that has produced this favorable opportunity for the plaintiff is that of the defendant, and it cannot be shifted to the plaintiff by pointing out that- if its application is granted the plaintiff will seize the opportunity. The tenth finding, we believe, is unsupported by any evidence in the record, and the respondent seemingly so concedes, for his brief says: “Finding No. 10 is in a large measure a conclusion based largely upon the *64knowledge of the Administrator * * *. If, however, this finding is not supported, other findings are amply supported by competent evidence, and sustain the judgment of the trial court.”
The foregoing are the facts. The question now occurs: Does our Milk Marketing Act confer authority upon the defendant which rendered it lawful for him to deny the plaintiff the right to ship to and sell in its Salem stores milk purchased in the Salem area and processed in its Portland plant.
The Milk Marketing Act is not lengthy and most of its provisions are readily understandable. We shall now review the Act.
The preamble of the Act received mention in previous opinions of this court. It speaks of the importance of the milk industry and declares that “the present economic emergency is in a large part the result of a disparity between the prices of milk and cream and other commodities.” It notes that destructive trade practices had developed in the milk industry and that they constituted a menace to the health and welfare of the people. In order to protect the well-being of the people, it declared the milk industry “a business affecting the public health and interest. ’ ’ Having made those pronouncements, the preamble closed with a declaration that the milk industry “should be supervised and controlled in the manner hereinafter provided.” We direct attention to the words just quoted. They were emphasized in Sunshine Dairy v. Peterson, supra. The decision just cited also pointed out that the preamble of a statute is “not an essential part thereof, and neither enlarges nor confers powers.” We proceed now into the enactments of the act.
*65The first section, 34-1001, OCLA, as amended, is made np of definitions. Section 34-1002, as amended, creates the authority which administers the act. Section 34-1003, as amended, specifies the following as the powers which the agency has: (a) authority to confer and cooperate with similar agencies of the federal and state governments; (b) to investigate with Oregon State College all matters pertaining to the milk industry; (c) “to supervise and regulate the milk industry of the state, including production, as defined in section 34-1013 hereof * * #”; (d) to act as arbiter of controversies that arise between those engaged in the industry; (e) “to examine into the business, records and accounts of any milk dealer” and, by the use of subpoenas, to compel dealers to produce their records; (f) to take depositions; (g) to adopt and enforce needed rules and regulations; and (h) “to exercise such other powers as hereinafter are specified.” Sections 34-1004, 34-1005, 34-1006, 34-1007 and 34-1008 concern licensing. The first of those sections renders it unlawful for milk dealers to engage in business without a license. The next prescribes the information which the defendant can require an applicant for a license to furnish. The third governs the refusal, suspension or revocation of licenses. The fourth prescribes the amount of license fees. The fifth, being the one to which the plaintiff resorted when it instituted this proceeding, makes provision for judicial review of orders which refuse, revoke or suspend licenses. Before making a summary of § 34-1009, we will go on to the remaining sections. Section 34-1010, as amended, requires licensees to maintain records containing the information demanded by that section. Section 34-1011 declares that licenses issued by the defendant shall be in addition to others required by other laws and munic*66ipal ordinances. Section 34-1012, as amended, authorizes the defendant to regulate prices and prescribes the procedure which must be employed in price fixing. The concluding part of the section prescribes the procedure which the defendant must pursue in denying an application for a license or revoking one. Section 34-1013, as amended, is concerned with surplus milk. Section 34-1014 enables the defendant to issue subpoenas and provides for enforcing compliance by witnesses with the subpoenas. ■ Section 34-1015 authorizes the defendant to promulgate rules and governs the disposition of license money received by the defendant. Section 34-1016 states that no provision of the act shall prevent a cooperative organization “from blending the net proceeds of all of its sales into various classes and paying its producers such blended price * * Section 34-1017 renders a violation of the act a misdemeanor. Section 34-1018 authorizes the employment of hearing examiners and outlines the procedure which governs such hearings.
Section 34-1009, of which we omitted a summary, declares that the defendant
“may classify licenses and may issue licenses to dealers to * * * manufacture or sell milk limited to * * * a particular market or markets within the state, and may define what shall constitute a natural market area * * *. A market area shall include no more than one city or town, together with the contiguous territory within a reasonable distance immediately around the same, where marketing conditions are the same, unless two or more towns or cities are so closely adjacent to one another that they comprise but one natural market area and are subject to the same marketing conditions, in which event, such two or more adjacent towns or cities together with the contiguous área around the *67same as heretofore defined, may be included in one marketing area. Each market area, * * * shall include only that territory in which conditions involved in the production, processing and distribution of milk are similar. * * *”
The above is a synopsis of the statutory provisions which govern the issues before us. The defendant-respondent’s brief says: “The respondent does not rely on any implied or inherent powers of the Milk Control statute to sustain the judgment of the lower court.” Hence, this case is free from claims of implied and inherent powers.
The defendant contends that amended § 34-1003, subd. (c) and § 34-1009 authorized him to deny the plaintiff’s application for a license. In addition to considering those sections of our laws, we shall also take note of amended § 34-1003, subd. (g) and § 34-1015.
It will be recalled that amended § 34-1003, subd. (c) authorizes the defendant “to supervise and regulate the milk industry”; that amended § 34-1003, subd. (g) empowers the defendant to adopt and enforce needed rules and regulations; that § 34-1009 enables the defendant to (1) classify licenses, (2) prescribe the territorial limits of milk marketing areas and milk production areas, and (3) limit the territory within which a licensee may operate; and that § 34-1015, like § 34-1003, subd. (g), empowers the defendant to make necessary rules and regulations. Availing himself of the powers conferred by § 34-1003, subd. (g) and § 34-1015, the defendant promulgated the rule which we have quoted, reading as follows:
“No milk dealer or distributor who is licensed for a specific market and sales area may lawfully purchase milk from producers not qualified for the market in which the said milk dealer or distributor *68is licensed, nor may such distributor or milk dealer lawfully sell to any other person, distributor or milk dealer not licensed in said market any portion of said fluid mill?: and/or cream suitable for the bottle and can trade for resale without first obtaining the written consent of the Department of Agriculture, Milk Control Section.”
The rule just quoted possibly has its roots in § 34-1009, but the defendant’s rulings that the delivery of a bottle of mill?: from the Lucerne plant to one of the plaintiff’s stores constitutes a sale is, obviously, erroneous.
Before returning to § 34-1009 we shall pause for a moment upon §34-1003, subd. (c). Its language is sweeping and authorizes the defendant “to supervise and regulate the milk industry.” If the seven words quoted must be given their literal import throughout the act, all of the rest of the latter, with the exception of §§ 34-1002, 34-1008, 34-1014 and 34-1017, could have been left unpenned. In contrast to the general and indiscriminate provision just quoted, the act contains many sections which are specific and which clearly identify the course of action which the defendant is authorized to pursue in the instances to which they are germane. It is our duty to construe and give effect to the act in its entirety. After reading the whole act, we must seek from all of its terms the purpose of the enactment, for the intention of the whole controls the meaning of the parts. Sunshine Dairy v. Peterson, supra.
The draftsman of a statute, unlike a painter or a sculptor, has no choice of materials, such as canvas, bronze or marble, with which to work in depicting the ideas which he wishes to portray. Bronze, marble, paint and clay respond to the artist’s touch and subject them*69selves to Ms control. But there is available to a draftsman of a statute only words — inflexible and yet treacherous in their connotation. They do not forge in the minds of all readers the same images.
In an effort to find the ideas which are packaged in words, the courts have fashioned the rules of statutory construction. Those rules always give preference to specific provisions over others which are general or abstract. One of the rules holds that definite provisions in a statute relating to the subject under consideration control general provisions, in the absence of language which requires a contrary holding. Leet v. Barr, 104 Or 32, 202 P 414, 206 P 548. In the construction of legislation which confers authority upon officials, the rules render the courts ever sensible to the axiom that ours is a government of laws and not of men. See, generally, 12 Tulane Law Bev. 179. Another of the rules is expressed by Sutherland, Statutory Construction, 3d Ed, § 322, as follows:
“The tendency of the more recent cases is to sustain delegations of the licensing power even when broad discretions are delegated. TMs tendency seems justifiable when activity of licensing is an appropriate field for legislative regulation and where the determination of conditions is impracticable for legislative resolution and the legislature has provided as practical a standard for administrative guidance as is appropriate for the particular regulation. ’ ’
In construing the very Act now before us, this court, in Sunshine Dairy v. Peterson, 183 Or 305, 193 P2d 543, stated the rules of statutory construction of paramount importance to the issue awaiting decision. Those rules, as stated in that decision, are:
“This court has recognized certain special *70guides to statutory construction which apply when the question to be determined is the extent of power which has been delegated to an administrative body. * * * In Board of Railroad Commissioners of the State of Oregon v. Oregon Railway and Navigation Company, 17 Or. 65, 19 P. 702, this court said:
“ ‘It has for a long time been considered the safer and better rule, in determining questions of jurisdiction of boards and officers exercising powers delegated to them by the legislature, to hold that their authority must affirmatively appear from the commission under which they claim to act.
“ ‘There is too strong a desire in the human heart to exercise authority, and too much of a disposition upon the part of those intrusted -with it to extend it beyond the design for which, and the scope within which, it was intended it should be exercised, to leave the question of its extent to inference. Should it be so left, serious disturbances might arise, involving a conflict of jurisdiction which would be highly detrimental to the community.
“ ‘It is not, it seems to me, requiring too much of the legislative branch of the government to exact, when it creates a commission and clothes it with important functions, that it shall define and specify the authority given it so clearly that no doubt can reasonably arise in the mind of the public as to its extent.’
“In the more recent case of Layman v. State Unemployment Compensation Commission, 167 Or. 379, 117 P. (2d) 974, 136 A. L. R. 1468, the court said:
“ ‘It is an elementary and fundamental principle, which no one will dispute, that a commission, created by the legislature to administer a statute, is wholly limited in its powers and authority by the law of its creation. No more unwholesome doctrine could be suggested than that such a body is vested with discretion to ignore or transgress these limitations even to accomplish what it may deem to be laudable ends. That would be to leave room for *71that “play and action of purely personal and arbitrary power” condemned in Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, 226. If the statutes as written is not workable, then the remedy is with the legislature. * * V
sfc * % *
“If, in a doubtful case, the court should expand the legislative delegation of power beyond the legislative intent, it would, to that extent usurp the function of a coordinate department and permit the immediate exercise of powers which are not for courts to bestow. * * *.”
That decision renders it clear that any official, such as the defendant, who claims that authority was delegated to him to enter the order under challenge must place his finger upon legislation couched in express and nonambiguous language. In fact, it must be worded in terms so clear “that no doubt can reasonably arise in the mind of the public.”
The rules of which we have just taken notice suggest that we now determine whether the Milk Marketing Act contains specific provisions opposite to the application for a license which the plaintiff submitted to the defendant or whether the general language of § 34-1003, subd. (c), [“to supervise and regulate the milk industry”] is the only legislative direction which guides the defendant in determining the market areas which should be assigned to a licensee.
As we have seen, the Milk Marketing Act contains many provisions couched in specific language which apply to licensing. One of them demands that every milk dealer procure from the defendant a license; another prescribes the form of the license application and the information concerning himself, his equipment and his personnel which the applicant must enter upon *72the form; the next lists categorically seven grounds which require.the defendant to reject a license application or to suspend or revoke a license already granted; and still another requires the licensee to maintain records which reflect his daily transactions and expenses. The very fact that each of those provisions is cast in exact terms would render the situation anomalous if the legislature intended that other phases of licensing should be governed by a grant of power as lacking in definiteness as the provision “to supervise and regulate the milk industry.”
Section 34-1009, in addition to authorizing the defendant to divide the state into market areas and production areas, empowers him to “issue licenses to dealers to * * * manufacture or sell milk limited to * * * a particular market or markets.” The parties agree that the word “manufacture” as used in the section just quoted means to process.
From the words just quoted, we see that the defendant possesses authority to restrict a milk dealer to a single market or to authorize him to process for and sell milk in more than one. See, to the same effect, State ex rel. Peterson v. Woodruff, 179 Or 640, 647, 173 P2d 961. Unless the act expresses the rules which guide the defendant in determining whether a milk dealer should be awarded more than one market, that highly important function is entrusted to him without any direction whatever from the legislature as to what he should do with applications such as the one submitted by the plaintiff.
Neither party to this appeal claims that the defendant possesses, carte blanche, authority to reject or grant applications such as the one which the plaintiff submitted. As is seen from the findings which he *73entered, the defendant believes that if a market area into which a newcomer wishes to enter as a processor is presently receiving adequate service, he is required to reject the application. We infer that the defendant surmises that the act contains a clause somewhat akin to a provision for a closed shop or one which requires the new applicant to obtain a certificate of public convenience and necessity. We have read the Act with care, but have been unable to find in it anything which requires the newcomer to indict the existing mill?: service before he can hope to succeed with his application for a license.
We think that sections of the act which we have reviewed, and to which we shall presently advert, render reasonably clear the circumstances under which the defendant may restrict a licensee to only one market, or enable him to conduct his business in more than one. The sections which we have in mind are, in part, those which contemplate that mill? dealers (1) should be capable and responsible; (2) should have adequate personnel and equipment for the conduct of the business for which they seek a license; and (3) have not given indications of “inability or unwillingness properly to conduct the business of handling and selling milk.” We also have in mind the sections which speak of “natural market areas” and “territory in which conditions involved in the production, processing and distribution of milk are similar.” Still other provisions which we deem pertinent to the present inquiry require mill? dealers to maintain adequate records which reflect their daily transactions and record in detail their costs of operation. The Act affords the defendant constant access to those records. The evidence in this case indicates that the defendant consults with *74regularity the records of milk dealers, and also that he compiles from the information gleaned from their books data which is useful to him in his administration of the Act. In the manner just indicated, he has become apprised of such practical information as the volume of business conducted by milk dealers, the extent of their equipment and the expenses which they incur in all phases of their operations, such as processing and distributing. Testimony indicates that the data which, the defendant has compiled includes such practical information as the cost per quart of processing and distributing. The data shows the margin between retail price and the milk dealer’s total costs. From the foregoing, it is manifest that the defendant has intimate-knowledge of the amount of equipment, the required, capital and the number of employees which an applicant should have when he seeks to enter one or more-markets. Likewise, the defendant is familiar with the various market areas and of the conditions in them, with which a milk dealer must cope.
Obviously, the Milk Marketing Act requires the defendant to take into consideration, when he determines whether an application should be granted or rejected, all of the information of which we have taken notice. The purpose of § 34-1005 in demanding that an applicant for a license should divulge pertinent information about himself, and of §§ 34-1003 and 34-1010 in affording the defendant access to practical knowledge of the milk dealers’ operations, is to enable him to rule advisedly upon applications for licenses. But we think that the Act with equal clarity requires the defendant to employ the same information and knowledge when he determines whether an applicant should be restricted to only one market or should be granted. *75the privilege of doing business in more than one. The Act, according to our construction of it, deems that licensing consists, not only of determining which applications should be granted and which rejected, but also the number of markets which should be assigned to a licensee. The two functions are parts of the same process. The data which governs the one phase of licensing is in large part applicable to the other.
10. It is our belief that the Act contemplates that the defendant, in determining whether an applicant should be restricted to a single market or should be authorized to do business in more than one, is required to consider all of the facts and circumstances of which we have taken notice. He should call to his avail the knowledge of the milk industry which he has gathered from his official experience and from the records of licensees. Thus, he should consider, for example, the applicant’s responsibility, his financial worth, the extent of his equipment, the number of his personnel and his record as a milk dealer. Other sections of the act show that the defendant should also take into consideration whether or not “conditions involved in the production, processing and distribution of milk are similar” in the two or more market areas for which the applicant seeks a license. It seems clear that the Act does not intend that a milk dealer should be licensed for two markets if his processing plant or personnel is adequate for only one. If such an individual is granted a license authorizing him to do business in two markets, he will either render poor service or will neglect one of the markets. In the latter event, the defendant’s records will show a larger number of licenses outstanding than those that are actually employed. In short, when the defendant determines whether an applicant should be *76authorized to do business in more than one market, he is required to exercise sound and informed judgment based upon the entire record which lies before him. The question which he must answer after he has analyzed the record is this: Is this applicant equipped to render efficient and responsible service in the entire area which he seeks to serve? The defendant is not authorized, however, to deny a license merely because the applicant cannot indict the service which is already being rendered.
The above, we believe, is a just interpretation of the provisions of the Milk Marketing Act which govern the issues before us. It conforms, we believe, with the demands of § 2-216, OCLA, which says:
‘1 In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all.”
The above construction does not detract from the power of the defendant to see to it that producers receive ample prices; nor does it affect his authority to secure, through adjustments in market areas, an ample supply of milk for all communities.
It is our belief that the defendant misconstrued the Act when he entered his findings. He was not, according to our understanding, authorized to deny the application merely because he found that the Salem market area was receiving adequate service and that a grant of the plaintiff’s application would have an adverse effect upon present licensees, that is, the interveners.
*77The defendant relies upon State ex rel. Peterson v. Martin, supra, as support for his contentions that the defendant can deny a license to an applicant-processor if he believes that the community in question is receiving adequate milk service. That decision contains language which lends support to the defendant’s claim, but we believe that it will not be amiss to take note of the issues which were submitted when that case was appealed, for it is not every judicial utterance which becomes stare decisis. The complaint in the case was filed by the director of the Milk Marketing Act and averred two causes of suit. The prayer sought an injunction restraining the defendant, Martin, from rendering milk service in the city of Sheridan. Martin was a producer-distributor. The first cause of suit alleged that Martin was selling milli in the city of Sheridan “without having a license to offer or sell said fluid milk suitable for human consumption within the said City of Sheridan.” It alleged that his course of conduct was long continued and constituted a public nuisance. The second cause of suit alleged that (1) at a time when Martin had a license authorizing him to sell mill?: in the city of Willamina, he applied for a license authorizing him to sell milk also in Sheridan; (2) later, the mill?: director held a hearing upon Martin’s application; (3) at the close of the hearing, the director entered an order denying a license for Sheridan; (4) notwithstanding the order denying a license for Sheridan, Martin continued to sell milk in that city; (5) after the denial of the application, Martin challenged, by a proceeding for a writ of review, the validity of the director’s order; (6) upon a hearing in the circuit court the writ was quashed and the director’s order was affirmed; and (7) Martin’s continued course of conduct in selling milk in Sheridan without a *78license constituted the maintenance of a nuisance! The answer, after some admissions and denials, averred that on December 31, 1945, the milk administrator granted Martin “a license to operate as a mill?: dealer and distributor within the district of Willamina and Sheridan, Oregon, which comprises the same district referred to in plaintiff’s complaint * * *; that said license is still in. full force and effect.” The reply alleged that the license mentioned in the answer was mailed to Martin through mistake by an employee in the director’s office who had no authority to issue such a license. The reply further alleged that within two or three days after the mailing had occurred, the mistake was discovered and the director advised Martin by long distance telephone of the mistake. It further alleged that on the same day the director sent to Martin, by registered mail, a license for Willamina only. Upon the trial, the circuit court sustained the averments concerning mistake and entered a decree which granted the requested injunction. Martin appealed. His appeal submitted two assignments of error. The first was:
“The court erred in holding that the defendant A. L. Martin did not have a valid license to distribute mill?: in the City of Sheridan.”
Accompanying the first assignment of error were the following propositions of law:
“After a distributor’s license has been granted by the Department of Agriculture, the only method for cancellation is that provided by Section 34-1006, O.C.L.A.”
“Upon an application for a distributor’s license, the Department of Agriculture has no discretion to refuse such a license and must allow the same unless it appears that the distributor applicant has *79been guilty of any of the acts set forth in Section 34-1006, O.C.L.A.”
“The license issued to A. L. Martin to distribute milk in the Sheridan district has never been can-celled by order of the Department of Agriculture. ’ ’
The second assignment of error was:
‘ ‘ The court erred in granting an injunction prohibiting the appellant from distributing fluid milk within the City of Sheridan, Oregon.”
It will be seen from the nature of Martin’s assignments of error and propositions of law that he was forced to concede that he conduetéd his business in Sheridan without a license, unless revocation proceedings were essential to the termination of the erroneously issued license. His second proposition of law that the defendant had no lawful right to deny him a license could avail him nothing because (1) the fact remained that he had no license; and (2) the circuit court, upon review of the license denial by a proceeding instituted by Martin for a writ of review, had quashed the writ and affirmed the order of license denial. Martin had not appealed from the court’s order. Accordingly, the issues submitted by the Martin appeal, apart from the purported issue of license revocation, were these: Did the circuit court err when it held that the Sheridan license was issued to Martin by mistake; and could the administrator rightfully correct his mistake. After this court had affirmed the circuit court’s holding in favor of the director upon the issue of mistake, there was no occasion to go further.
American Jurisprudence, Courts, Vol. 14, § 82, p. 295, in the following language, states a well-known principle of law:
“The doctrine of stare decisis contemplates only *80such points as are actually involved and determined in a case, and not what is said by the court or judge outside the record or on points not necessarily involved therein. Such expressions, being obiter dicta, do not become precedents.”
A recent example of the application of that rule to a decision by this court is McCredie v. Commercial Casualty Insurance Co., 142 Or 229, 20 P2d 232. We think that the utterances in the Martin decision which lend countenance to the defendant’s contention were not within the doctrine of stare decisis. But even holdings that are within the doctrine of stare decisis are not beyond subsequent re-examination. If they were, the growth that the common law has made in the last six hundred years, and which has kept it abreast with Anglo-Saxon progress, would not have been made. The following is quoted from 21 CJS, Courts, § 193, p. 322:
“The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each ease by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong be the result. Accordingly, unless a doctrine or principle has become so well established that it may fairly be considered to have become a rule of property, * * * the courts will not adhere to it, although established by previous decisions, if they are convinced that it is erroneous, even though it may have been reasserted and acquiesced in for a number of years, especially if the former decisions are injurious or unjust in their operation.”
State v. Mellenberger, 163 Or 233, 95 P2d 709, 128 ALR, 1506, a criminal case, in departing from a precedent, quoted the following from Dr. Roseoe Pound:
“In the epigrammatic phrase of Mr. Justice Holmes, historical continuity is not a duty, it is *81only a necessity. It is not that we ought to hew to what our forbears have done in the past as a matter of duty. But we find ourselves starting where they left off, building upon -what they did and using the materials they left to us. In law we have to perceive how and why legal institutions arose, and to what ends, and with newer and better perceived and better understood ends, to adapt the institutions and materials which have come down to us to the tasks of social control in the time and place. Our materials are experience by reason and testing reason by experience. ‘Every generation,’ says Sir Frederick Pollock, ‘takes up from its fathers, if it is worthy of them, a new starting point of imagination and aptitude, and the strange conservatism of the imaginative faculty is a sure warrant of continuity.’ ”
After that quotation, the Mellenberger decision took the following from an essay by Daniel H. Chamberlain:
“A deliberate or solemn decision of a court or judge, made after argument on a question of law fairly arising in a case, and necessary to its determination, is an authority, or binding precedent, in the same court or in other courts of equal or lower rank, in subsequent cases, where ‘the very point’ is again in controversy; but the degree of authority belonging to such a precedent depends, of necessity, on its agreement with the spirit of the times or the judgment of subsequent tribunals upon its correctness as a statement of the existing or actual law, and the compulsion or exigency of the doctrine is, in the last analysis, moral and intellectual, rather than arbitrary or inflexible.”
We adhere to our belief that the Martin decision is not within the doctrine of stare decisis. Clearly, it is subject to re-examination.
A specially concurring opinion written by Mr. Justice Warner analyzes the part of the Martin decision which construed the Milk Marketing Act. In *82view of that analysis, which this decision by reference incorporates into itself, nothing more need be said. We deem the part of the Martin decision upon which the defendant relies as not within the protection of stare decisis and, for the reasons expressed by Mr. Justice Warner, unsound. Statements in State ex rel. Peterson v. Martin, supra, contrary to our holding in this case must be deemed withdrawn.
A careful analysis of the Milk Marketing Act by us has found nothing which supports the defendant’s claim to economic control over processors.
Since the defendant has issued licenses to the plaintiff which authorize it to operate both as a dealer and as a processor, he evidently is satisfied with its responsibility and equipment.
The cause is remanded to the circuit court so that it may instruct the defendant to issue the necessary license.