In re Tannenbaum

Bonynge, J.

The commissioner of public markets, weights and measures has refused to issue a license to the petitioner to vend ice, upon the ground that the latter has sold this commodity for less than the so-called code price of sixty cents a hundred pounds. The petitioner’s application for a peremptory mandamus order raises two questions of far-reaching importance, viz.: (a) The constitutionality of the attempted regulation, and (b) the right or duty of State and municipal authorities to act as volunteer aides in a Federal undertaking of this character.

The constitutional aspect of the matter requires little more than passing consideration by a court of first instance. The precise implications of life under codes are as yet scarcely discernible, and no one dare prophesy to what extent individualism must yield to regimentation in order to keep the economic world upon its axis. The Legislature has lately decreed that milk shall not be sold in this State below certain predetermined prices (Laws of 1933, chap. 158), and the constitutionality of the law has been upheld (People v. Nebbia, 262 N. Y. 259; affd., 291 U. S. 502). Whether the liberties of dealers in ice may be similarly circumscribed is a problem for the future (New State Ice Co. v. Liebmann, 285 U. S. 262).

Turning now to the power of the commissioner in the instant case, a different question is presented. Congress has fortified its new legislation with adequate penalties to be enforced primarily through the Federal courts. Assuming that the petitioner has violated some provision of a code of fair competition, does that make him a moral leper who may be reviled and stoned with impunity by all in the market place? Would it, for example, be an answer to the petitioner’s application to say that he used untaxed bootleg gasoline in his automobile, or that he was delinquent in payment of governmental taxes, or that he had offended against another Federal law by sending an obscene book through the mails? If no duty rests upon the commissioner to enforce these laws, then upon what theory can he assume to regulate the conduct of people under a code which similarly derives its authority from Washington? It seems" clear that his right in the one case is no greater than in the others that have been supposed. Until such time as Congress deems it appropriate to invite the aid of local functionaries, they should restrain their patriotic ardor. When the paid firemen arrive on the scene, is usually the time for the volunteers to roll up their garden hose and trundle it home.

Application for peremptory mandamus order granted, with fifty dollars costs.