On Motion for Rehearing
DALTON, Judge.In view of the first and primary assignment in respondent’s motion for rehearing to the effect that the Act in question is a local or special law where a general law could have been made applicable, *764it seems apparent that the original opinion did not adequately discuss the question of whether House Bill No. 255 constituted a local or special law contrary to the provisions of subsection (30) of Section 40 of Article III of the Constitution of Missouri 1945, V.A.M.S., which prohibits the enactment of any local or special law where a general law could have been made applicable. The question is a judicial one to be judicially determined without regard to any legislative assertion on the subject.
“When a special law is passed * * * the legislature necessarily determines, in the first instance, that a general law cannot be made to apply. But their determination is not final. There is, of course, a presumption that public officers have discharged their duties properly and every act of the legislature is presumed to be valid until there is a judicial determination to the contrary.” Anderson v. Board of Com’rs of Cloud County, 77 Kan. 721, 734, 95 P. 583, 587; City of Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1, 4; ABC Liquidators, Inc. v. Kansas City, Mo., Mo.Sup., 322 S.W.2d 876, 885(15).
In determining the constitutionality of a statute under the constitutional provision in question here we are not dealing with the matter of classification of the subject matter of the Act for the purpose of determining whether the Act violates other constitutional provisions such as equal protection of the law or due process, where the test is whether the legislative classification rests upon some difference which bears a reasonable and just relation to the Act in respect to which the classification is proposed. The question before us here is whether, considering the purposes of the Act, a general law could have been made applicable.
" ‘A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some persons, places or things from others upon which, but for such limitation, it would operate. The test of a special law is the appropriateness of its provisions to the objects that it excludes. It is not, therefore, what a law includes, that makes it special, but what it excludes. If nothing be excluded that should be contained the law is general. Within this distinction between a special and a general law the question in every case is whether any appropriate object is excluded to which the law, but for its limitations, would apply. If the only limitation contained in a law is a legitimate classification of its objects it is a general law. Hence, if the object of a law have characteristics so distinct as reasonably to form, for the purpose legislated upon, a class by itself, the law is general, notwithstanding it operates upon a single object only; for a law is not general because it operates upon every person in the state, but because every person that can be brought within its predicament becomes subject to its operation.’” (Italics ours.) State ex inf. Barrett ex rel. Bradshaw v. Hedrick, 294 Mo. 21, 241 S.W. 402, 407; Budd v. Hancock, 66 N.J.L. 133, 135, 48 A. 1023, 1024.
The principle is perhaps best illustrated in the case of City of Springfield v. Smith, supra, 19 S.W.2d 1, 5(8); and McKaig v. Kansas City, 363 Mo. 1033, 256 S.W.2d 815.
In the Smith case the city ordinance prohibited on Sunday “only the keeping ‘open of any theatre, playhouse, or any other place where theatrical performances, vaudeville shows or moving picture exhibitions are given or conducted,’ or conducting or taking part in any such performance, show or exhibition.” This Court pointed out that omitted from the ordinance was any prohibition against “the keeping open and operation of such public amusement businesses as concerts, circuses, amusement parks, public halls, sparring exhibitions, wrestling exhibitions, and like public amusement businesses * * The Court said: “Each and all of the public amusement businesses above enumerated, but omitted from *765the operation of the ordinance, affect the permissible subject-matter of this legislation in very much the same way. The keeping open and operation of each requires similar labor activities, each furnishes to the public for a consideration an opportunity for excitement and entertainment, and each is sufficiently attractive to induce large portions of the public to attend, and each is fairly and reasonably comparable with theaters, vaudeville shows,' and moving picture exhibitions in their possibilities of disturbing a day of rest. We find no reason which would justify the regulation of one in this regard which will also not apply with equal force to the others. They all appear to be similarly situated with reference to the permissible subject-matter sought to be dealt with by the ordinance.”
The Court further said: “We are not here so much concerned with determining how many activities which threaten to disturb the subject-matter sought to be protected could or might be included in the one piece of legislation, but our problem of instant concern is whether some have been omitted from the ordinance now involved which it would be clearly unreasonable and arbitrary to omit.” (Italics ours.) City of Springfield v. Smith, supra, 19 S.W.2d 1, 4, 5.
In McKaig v. Kansas City, supra, this Court held that a city ordinance prohibiting automobile dealers from keeping their places of business open on Sundays and six national holidays was unconstitutional as a “special law” excluding from its operation all persons engaged in businesses of selling all other commodities and merchandise, except automobiles, and without any reasonable basis for such distinction.
After pointing out that “the laws of this state that prohibit work on Sunday * * * are based upon a sound public policy which recognizes that rest one day in seven is for the general good of mankind” the Court further said: “The ordinance before us excludes all persons engaged in the business of selling all commodities and all merchandise except automobiles. In other words, it excludes all persons engaged in the business of selling television sets, radios, phonographs, refrigerators, washing machines, electric and gas ranges and heaters, trailers, golf equipment, furniture, hardware, clothing and many other articles. * * * There is no reasonable basis for singling out those people who are engaged in the business of selling automobiles and excluding those people who sell the above enumerated articles of merchandise who are permitted to keep open their places of business on Sundays and the six named holidays.” (Italics ours.) [256 S.W.2d 815, 817(7).]
Subsection (30), Section 40 of Article III is somewhat similar in certain respects to Section 28 of Article I of the Constitution of 1945 with reference to the taking of private property for public use. It is there stated that “when an attempt is made to take the private property for a use alleged to be public, the question whether the contemplated use be public shall be judicially determined without regard to any legislative declaration that the use is public.” In the case of Bowman v. Kansas City, Mo.Sup., 233 S.W.2d 26, 34, involving the question of whether the taking of private property by the city for off-street parking was a public purpose, the judicial determination was made by this Court upon stipulated facts and upon facts of which the Court took judicial notice. In the case of City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8, 11, it was pointed out that the owner of property sought to be taken for a city park “had the right to demand that the court hear the evidence and determine whether or not the purpose of the proceeding was to condemn for a public use or for a private use.”
In the case under consideration here evidence could have been heard on the question whether a general law could have been made applicable, but the plaintiff offered no evidence tending to show that any other industry had been unreasonably and arbitrarily omitted from the Act. On the *766other hand, the defendants did offer, and the Court received in evidence, the “Final Report of the Joint Committee on Milk Producers and Distributors’’ which was referred to and quoted from in the majority opinion. In determining the issue presented this Court is not limited to the evidence the parties see fit to offer, but may consider matters of common knowledge under the doctrine of judicial notice.
Without question, we believe that House Bill No. 255, regulating the sale of milk and milk products in Missouri, is a special law based upon a sound classification, since the milk industry, as such, has long been the subject of special legislation. Further, considering the subject-matter of the present Act and the evils sought to be corrected, a general law could not have been made applicable, and no other similar industries have been omitted which it was clearly unreasonable and arbitrary to omit.
. In determining the issue presented we must first look to the provisions of the Act, which consists of thirty-one sections. It is a most comprehensive Act relating to the sale of milk and milk products. It was held to be void in its entirety by the trial court and its enforcement prohibited by injunction because certain provisions of the Act were held to be violative of certain constitutional provisions. It is true that some sections of the Act do more or less overlap the subject matter of certain general criminal ■statutes of the State, which statutes of ■course apply to the milk industry equally with all businesses, however, the Act in ■question is not a criminal statute. The dissenting opinion refers to the broad terms of-Chapter 416 RSMo 1959, V.A.M.S. dealing with Monopolies, Discriminations and Conspiracies, which are criminal statutes. See Secs. 416.130, 416.150, 416.280 RSMo 1959, V.A.M.S.
The purpose of the Act clearly appears from the last twenty sections of the Act where a licensing system is set up for manufacturers and processors of dairy products and fees are fixed and provisions made for the revocation of licenses. The Act also authorizes the Commissioner to promulgate rules and regulations to carry out the purposes of the Act, to subpoena witnesses, carry on investigations and employ auditing firms in the examination of books and records. Provision is made for claimants to make complaints and for investigations to be carried on incident thereto. Section 20 of the Act provides for the issuance of “stop orders” and enjoining of certain operations without a license. Numerous detailed provisions are set out in the Act for making the Act effective, particularly the licensing regulations, the investigation of complaints and the use of the injunctive processes of the courts to compel compliance. The purpose of the Act also appears from the evidence contained in the Committee report that, “Procedures for the investigation of alleged violations are provided and complainants are required to post a bond from which the investigation costs are paid if the complaint proves to be spurious. The latter clause is included to discourage malicious false accusations while retaining the benefits of public assistance in the enforcement of the act. Violators are subject to injunction, the assessment of treble damages when others are injured and the revocation of their licenses to handle milk products. Also included in the bill are sections designed to make the law applicable to those selling milk in Missouri from without the state.”
In view of all of the thirty-one provisions of the Act can it be said that any other similar industry has been unreasonably and arbitrarily excluded? The “Final Report of the Joint Committee on Milk Producers and. Distributors,” offered in evidence by defendants, pointed out that “between 1933 and 1936 twenty-seven states adopted milk price control legislation.” Under many of these acts provision was made for definitely fixing the price of milk. The principal opinion further points to the fact that under Federal statutes orders are designated to help stabilize supplies and prices of fluid milk; that under these orders the *767Secretary of Agriculture sets the minimum prices which handlers are required to pay dairymen in certain areas. Under the thirty-six orders now in effect, the price to be paid to producers for fluid milk at each of the thirty-six locations is determined by the Department of Agriculture. These orders include the St. Louis area, the St. Joseph area and the greater Kansas City area. One need only be cognizant of fácts commonly known and widely publicized to become familiar with the fact that the economy of the milk industry throughout the entire United States has become “so eccentric that economic controls have been found at once necessary and difficult.” (H. P. Hood & Sons v. DuMond, 336 U.S. 525, 69 S.Ct. 657, 661, 93 L.Ed. 865.) It should be unnecessary to further refer to matters of common knowledge with reference to the production of milk, its distribution and use. While beef, pork, mutton and many other products may quite as well be produced in Argentina, Australia or New Zealand, the same situation does not exist with reference to fresh milk produced by local dairies throughout the State of Missouri and much of it used locally in the community where it is produced. It is further a matter of common knowledge that small dairy herds and small dairy operators are continually being forced out of business by the general movement toward centralization of the industry under the control of the great industrial concerns, which exert a controlling force over wide areas. It is also clear that when local dairies and local dairy herds are once eliminated from a particular community they are unlikely to be re-established in view of present industrial trends.
We fully agree with the statement in the dissenting opinion that the Act is “directed solely at the economy of the milk industry.” The same is substantially true of the statutes of the many states fixing the price of milk and milk products, and of the Federal orders fixing the price to be paid to producers of fluid milk. Why has the milk industry been singled out for all of this special legislation if there is no difference between the milk industry and others as far as its economy is concerned?
As stated in the majority opinion,, the “respondent concedes the right of the State to regulate and control the production and distribution of milk with regard to sanitation and purity but not as to sales and distribution and sales practices.” However, regulations as to sanitation and purity may be quite as important to many types of other food stuffs as they are to milk, but we know of no such act having been declared unconstitutional because the act did not cover all other foods in need of sanitation and purity regulations.
While House Bill No. 255 does not undertake to specifically fix the sale price of milk to the consumer nor the price to be paid to the producer, still it is apparent from its provisions and the machinery and licensing system set up for the enforcement of its provisions and for the supervision of the industry that the essential purpose of the Act is the maintenance of local dairy herds and the local dairy industry throughout the State and the protection of such industry, because it is in a special economic class. From the evidence offered by the parties and from the facts of common knowledge it cannot be said that any other similar industry has unreasonably or arbitrarily been omitted from the provisions of the Act considering the subject matter of the Act and the evils sought to be corrected thereby. Subsection (30) of Section 40 of Article III, Constitution of Missouri 1945 as applied in the McKaig and City of Springfield cases, supra, has no application under the facts of this case.
It will be unnecessary to review other assignments in the motion for rehearing. They have been examined and found to be without merit. Respondent’s motion for a rehearing is overruled.
WESTHUES, C. J., HOLLINGS-WORTH and HYDE, JJ., concur; EAGER, STORCKMAN and LEEDY, JJ., dissent.