180 A. 473 (Me. 1935), State v. Old Tavern Farm, Inc.

Citation180 A. 473, 133 Me. 468
Opinion JudgeDUNN, Justice.
Party NameSTATE v. OLD TAVERN FARM, INC.
AttorneyWalter M. Tapley, Jr., of Portland, for the State. Robinson & Richardson, of Portland, for defendant.
Judge PanelArgued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, THAXTER, and HUDSON, JJ. HUDSON, Justice (dissenting).
Case DateJuly 22, 1935
CourtSupreme Judicial Court of Maine

Page 473

180 A. 473 (Me. 1935)

133 Me. 468

STATE

v.

OLD TAVERN FARM, INC.

Supreme Judicial Court of Maine.

July 22, 1935

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, THAXTER, and HUDSON, JJ.

Walter M. Tapley, Jr., of Portland, for the State.

Robinson & Richardson, of Portland, for defendant.

DUNN, Justice.

A statute of this state, enacted in 1933, entitled: "An Act Requiring the Licensing of Operators of Milk Gathering Stations," declares that persons, firms, associations, or corporations shall not engage or continue in the business of buying milk or cream within the state from producers, for sale, resale, manufacture, or shipment to

Page 474

cities for consumption, without annually procuring licenses from the Commissioner of Agriculture, and posting bonds to that official in penalty not less than five hundred, nor more than one hundred thousand dollars, conditioned, among other things, that the licensees will meet obligations arising from the purchase of such dairy products. Deposit with the Commissioner of money, or securities legalized for savings banks, would obviate giving bond. P. L. 1933, c. 210, § 2, as amended by chapter 283 (Special Session). The act exempts any "person" engaged in dairying who purchases not exceeding two hundred and fifty quarts daily "as a supplement to his own supply." The Commissioner may grant or decline a license, or revoke one already granted after due notice and a hearing, action being subject to review on certiorari.

The license fee is $5; violation of any provision of the act is punishable, upon conviction, as a misdemeanor.

The respondent, a domestic corporation, dealt, within state limits, in milk and cream, as a business, without having secured a license, and without having filed any surety bond. The agreed facts are not more specific in recital. If maintainable, the case shall be remanded for trial; otherwise, direction of dismissal.

The primary and important controversy is the constitutionality of the statute.

Counsel for respondent, in opposition to every presumption of validity, contends that, in exacting milk station operators, and no others, as a prerequisite to license, to file bonds or tangibly demonstrate pecuniary ability to pay producers, the enactment is unreasonably discriminatory, and constitutes an unwarranted interference with private rights.

The attorney for the state rejoins that the act is, as a police regulation, expedient and fairly suited to purpose in bona fide exercise of the discretion of the legislative department of government.

Statutes of this kind, to be sustained, must find a reason for their existence, in that inherent, original sovereignty called the police power of the state. Boston & Maine R. Co. v. County Commissioners, 79 Me. 386, 10 A. 113. "Police power," in its broadest acceptation, means the general power of a government to preserve and promote the public health, safety, morals, comfort, or welfare, even at the expense of private rights. Cooley, Const. Lim. (6th Ed.) p. 704. Speaking generally, police power is a power not granted in the Federal Constitution, but "reserved to the states respectively." Const. of U.S. Amend. art. X; Keller v. United States, 213 U.S. 138, 29 S.Ct. 470, 53 L.Ed. 737, 16 Ann.Cas. 1066; House v. Mayes, 219 U.S. 270, 281, 282, 31 S.Ct. 234, 55 L.Ed. 213, 218. Such power should, however, observe its bounds; it cannot go beyond the State and Federal Constitutions. New Orleans Gas-Light Co. v. Louisiana Light, etc., Co., 115 U.S. 650, 6 S.Ct. 252, 661, 29 L.Ed. 516.

Health being the necessity of all personal enjoyment, and hence a special ward of the police power of the state, it is not only the right, but the duty, of the Legislature to pass such laws as may be reasonably necessary for the preservation of the public health. Com. v. Waite, 11 Allen (Mass.) 264, 87 Am.Dec. 711; Johnson v. Simonton, 43 Cal. 242.

Still, the Legislature cannot, under pretense of exercising the police power, enact a statute which does not concern the welfare of society. To illustrate, it is not enough that sanitation be merely incidental; it must have been intended to be effected. When, from perusal, there is no fair, just, and reasonable connection between a statute and the common good, and it is manifest that such was not the object of the statute, it will not be sustained. Austin v. Murray, 16 Pick. (Mass.) 121, 126.

"What is called 'class legislation' would belong to this category, and would be obnoxious to the prohibitions of the fourteenth amendment." Civil Rights Cases, 109 U.S. 3, 24, 3 S.Ct. 18, 30, 27 L.Ed. 835, 836, 843. It is true that this remark was made in regard to a different question than this case involves, but it applies here.

The Constitution of the State of Maine affirmatively secures to all persons an equality of right to pursue any lawful occupation under equal regulation and protection by law. Its words are these:

"All men are born equally free and independent, and have certain natural, inherent and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining

Page 475

safety and happiness." Const. of Maine, art. 1, § 1.

Pertinent provisions of the Fourteenth Amendment to the Constitution of the United States are:

"nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Constitution of the United States is, within its province, through all times and events, as a governmental chart, supreme throughout the Union. It invalidates all conflicting laws. In re National Prohibition Cases, 253 U.S. 350, 40 S.Ct. 486, 588, 64 L.Ed. 946. One of the greatest steps the Federal Constitution ever took was when Chief Justice Marshall gave distinct notice that it was the ultimate law against which nothing could prevail. Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60.

The civil "liberty" safeguarded is not merely freedom of the person from unjust or unlawful imprisonment. Liberty is freedom from all restraints except such as are justly imposed by law to secure the common welfare. The principle upon which liberty is based is equality under the law of the land. Allgeyer v. Louisiana, 165 U.S. 578, 589, 17 S.Ct. 427, 41 L.Ed. 832; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446.

The Fourteenth Amendment does not prevent reasonable classification as long as all within a class are treated alike. The liberty guaranteed is not freedom from all restraints, but from restrictions which are without reasonable relation to a proper purpose, and are unjustly arbitrary and discriminatory. Miller v. Wilson, 236 U.S. 373, 35 S.Ct. 342, 59 L.Ed. 628, L.R.A. 1915F, 829. What is reasonable depends upon a variety of considerations. It is an elastic term of uncertain value in a definition. Sussex Land, etc., Co. v. Midwest Refining Co. (C.C.A.) 294 F. 597.

The guaranties and assurances of the Constitution of Maine, and of the Constitution of the United States, are positive, direct, unchanged, and unrelaxed by circumstances.

"Subject, however, to the limitation that the real object of the statute must appear, upon inspection, to have a reasonable connection with the welfare of the public, the exercise of the police power by the legislature is well established as not in conflict with the constitution." People v. Havnor, 149 N.Y. 195, 43 N.E. 541, 543, 31 L.R.A. 689, 52 Am.St.Rep. 707.

The Fourteenth Amendment was not designed to interfere with due exercise of the police power by the state Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923.

In the case at bar, the defense is rested mainly on State v. Latham, 115 Me. 176, 98 A. 578.

That was a criminal proceeding against an individual. A statute (1915 Pub. Laws, c. 32) undertook to lay down that certain purchasers of milk or cream should (except where a written contract stipulated differently) pay producers semimonthly; and to prescribe a fine for nonobservance.

The statute was of no legal force. It was held to afford milk producers, and no other creditors, the use of the criminal law in collecting mere civil obligations, and to contravene the Fourteenth Amendment.

The instant act is, in many respects, a literal copy of one in New York, there adjudged valid, first on the ground that, being severable, it was applicable, in view of power antecedently reserved to the Legislature of that state to amend, alter, or repeal corporate charters, to corporations of local creation. People v. Beakes Dairy Co., 222 N.Y. 416, 119 N.E. 115, 3 A.L.R. 1260. More recently, the law was held to apply to natural persons. People v. Perretta, 253 N.Y. 305, 171 N.E. 72, 84 A.L.R. 636.

There had been reserved to the Maine Legislature power to amend, alter, or repeal corporate franchises (R. S. c. 56, § 2), but its present enactment seems incapable, on first reading, of being separated or divided into component parts, so as to be incumbent by way of franchise alteration or amendment, on corporations, regardless of the inclusion of persons, firms, and associations.

The language of section 2 (c. 210, 1933 Pub. Laws), so far as now material, is as follows:

"No person, firm, association or corporation, shall buy milk or cream within the state from producers for the purpose of sale or resale, or for manufacture, or for shipping the same to any city for consumption [unless annually licensed].

Page 476

* * * A license shall not be issued * * * unless the applicant for such license shall file with the application a good and sufficient surety bond. * * * Such applicant may in lieu of such bond deposit * * * money or securities * * * in an amount equal to the sum secured by the bond. * * *"

Use of the term "person," alone, would likely have been sufficient.

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24 practice notes
  • 174 So. 609 (Ala. 1937), 6 Div. 71, Gilchrist Drug Co. v. City of Birmingham
    • United States
    • Alabama Supreme Court of Alabama
    • April 22, 1937
    ...698; Carolene Products Co. v. Banning (Neb.) 268 N.W. 313; People v. McFall (City Ct. Buffalo) 158 N.Y.S. 974; State v. Old Tavern Farm, 133 Me. 468, 180 A. 473, 101 A.L.R. 810; Logan v. Alfieri, 110 Fla. 439, 148 So. 872; People v. Biesceker, 169 N.Y. 53, 61 N.E. 990, 57 L.R.A. 178, 88 Am.......
  • 169 So. 41 (Fla. 1936), Mayo v. Polk Co.
    • United States
    • Florida Supreme Court of Florida
    • June 15, 1936
    ...To support this Page 44 contention appellee relies on Riley v. Sweat, 110 Fla. 362, 149 So. 48; and State v. Old Tavern Farm, Inc., 133 Me. 468, 180 A. 473, 101 A.L.R. 810. The majority opinion in the latter case supports appellee's contention. Riley v. Sweat was an habeas corpus proceeding......
  • 303 A.2d 794 (Me. 1973), Danforth v. State Dept. of Health and Welfare
    • United States
    • Maine Supreme Judicial Court of Maine
    • April 17, 1973
    ...liberty or property without due process of law. Mr. Justice Dunn, speaking for a majority of this Court in State v. Old Tavern Farm, Inc., 133 Me. 468, 471, 180 A. 473, 474-475 (1935), said: 'The Constitution of the State of Maine affirmatively secures to all persons an equality of right to......
  • 191 A. 421 (Md. 1937), 15, Jacobs v. Mayor and City Council of Baltimore
    • United States
    • Maryland Court of Appeals of Maryland
    • April 9, 1937
    ...New York v. Perretta, 253 N.Y. 305, 171 N.E. 72, 84 A.L.R. 636, and annotations, 640-644; and compare State of Maine v. Old Tavern Farm, 133 Me. 468, 180 A. 473, 101 A.L.R. 810, annotations, 827-829. And by sections 213 and 213A of article 56 of the Code of Public General Laws Supp.1935, a ......
  • Request a trial to view additional results
22 cases
  • 174 So. 609 (Ala. 1937), 6 Div. 71, Gilchrist Drug Co. v. City of Birmingham
    • United States
    • Alabama Supreme Court of Alabama
    • April 22, 1937
    ...698; Carolene Products Co. v. Banning (Neb.) 268 N.W. 313; People v. McFall (City Ct. Buffalo) 158 N.Y.S. 974; State v. Old Tavern Farm, 133 Me. 468, 180 A. 473, 101 A.L.R. 810; Logan v. Alfieri, 110 Fla. 439, 148 So. 872; People v. Biesceker, 169 N.Y. 53, 61 N.E. 990, 57 L.R.A. 178, 88 Am.......
  • 169 So. 41 (Fla. 1936), Mayo v. Polk Co.
    • United States
    • Florida Supreme Court of Florida
    • June 15, 1936
    ...To support this Page 44 contention appellee relies on Riley v. Sweat, 110 Fla. 362, 149 So. 48; and State v. Old Tavern Farm, Inc., 133 Me. 468, 180 A. 473, 101 A.L.R. 810. The majority opinion in the latter case supports appellee's contention. Riley v. Sweat was an habeas corpus proceeding......
  • 303 A.2d 794 (Me. 1973), Danforth v. State Dept. of Health and Welfare
    • United States
    • Maine Supreme Judicial Court of Maine
    • April 17, 1973
    ...liberty or property without due process of law. Mr. Justice Dunn, speaking for a majority of this Court in State v. Old Tavern Farm, Inc., 133 Me. 468, 471, 180 A. 473, 474-475 (1935), said: 'The Constitution of the State of Maine affirmatively secures to all persons an equality of right to......
  • 191 A. 421 (Md. 1937), 15, Jacobs v. Mayor and City Council of Baltimore
    • United States
    • Maryland Court of Appeals of Maryland
    • April 9, 1937
    ...New York v. Perretta, 253 N.Y. 305, 171 N.E. 72, 84 A.L.R. 636, and annotations, 640-644; and compare State of Maine v. Old Tavern Farm, 133 Me. 468, 180 A. 473, 101 A.L.R. 810, annotations, 827-829. And by sections 213 and 213A of article 56 of the Code of Public General Laws Supp.1935, a ......
  • Request a trial to view additional results
2 books & journal articles
  • Lost fidelities.
    • United States
    • William and Mary Law Review Vol. 41 Nbr. 1, December 1999
    • December 1, 1999
    ...v. Lincoln Dairy Co., 265 N.W. 197, 201 (Wis. 1936) (upholding Wisconsin milk control law). But see State v. Old Tavern Farm, Inc., 180 A. 473, 482-86 (Me. 1935) (divided court invalidating requirement of posting bond as precondition to obtaining license to operate a milk gathering station)......
  • The tort foundation of duty of care and business judgment.
    • United States
    • Notre Dame Law Review Vol. 88 Nbr. 3, February - February 2013
    • February 1, 2013
    ...See Bishop, supra note 21 and accompanying text. (236) State v. Chisesi, 175 So. 453, 459 (La. 1937) (quoting State v. Old Tavern Farm, 133 Me. 468, 476 (1935) (internal quotation marks omitted); see also Rowland v. Old Dominion Bldg. & Loan Ass'n, 18 S.E. 965, 966 (N.C. 1894) ("Lo......