Alabama Dairy Commission v. Food Giant, Inc.

• Decision Date: 10 February 1978
• Citation: 357 So.2d 139
• Parties: ALABAMA DAIRY COMMISSION v. FOOD GIANT, INC., a corporation, et al. SC 2482.
• Court: Alabama Supreme Court

Page 139

357 So.2d 139

ALABAMA DAIRY COMMISSION v. FOOD GIANT, INC., a corporation, et al.

SC 2482.

Supreme Court of Alabama.

Feb. 10, 1978.

B. G. Minisman, Jr., Birmingham, for appellant.

George L. Beck, Deputy Atty. Gen., and Benjamin Cohen, Asst. Atty. Gen., Montgomery, for William J. Baxley, Atty. Gen., and Food Giant, Inc., appellees.

Norman K. Brown, Bessemer, for Sam Pillitteri, Food Giant, Inc., and William J. Baxley, Atty. Gen., appellees.

Henry C. Chappell, Jr., Montgomery, on behalf of appellant, for Associated Milk Producers, Inc., amicus curiae.

BLOODWORTH, Justice.

Appellant Alabama Dairy Commission appeals from a final judgment holding, inter alia, that: (1) appellant, by virtue of its unconstitutional administration and application of Tit. 22, §§ 205-231, Code of Alabama 1940, ¹ (Alabama Dairy Commission Act), is permanently enjoined from exercising any powers granted to it in said Act pertaining to price fixing of fluid milk at the producer, wholesale, and retail levels; (2) appellant is permanently enjoined from setting prices of fluid milk at the wholesale and retail levels because the wholesale and retail sale of fluid milk is not a business so affected with the public interest as to warrant price fixing, and such attempt by the legislature violates both the State and Federal Constitutions; (3) appellant's power to fix prices, contained in Tit. 22, §§ 223-223(1), Code, rests on such vague generalities that it constitutes an unconstitutional delegation of legislative authority in violation of the due process clause of the State Constitution; and (4) enforcement of the Alabama Dairy Commission Act works an unconstitutional burden on interstate commerce because it discriminates against out-of-state producers by relegating them to a secondary milk market and obstructs the free flow of milk across state lines. We reverse and remand.

Appellant instituted this action on December 9, 1976, by filing a complaint, seeking a temporary restraining order and a preliminary and permanent injunction against appellee, Food Giant, Inc., for selling and offering to sell fluid milk in violation of Dairy Commission Regulation 115-1. This regulation, which was passed by the Dairy Commission, pursuant to the Act, and went into effect on September 1, 1976, fixed the minimum price for retail out-of-store sales of homogenized milk at $1.74 per gallon.

The Circuit Court, after notice to appellee, Food Giant, Inc., entered the temporary restraining order, ex parte, and set a hearing for the application for a preliminary injunction for December 13, 1976. Food Giant then filed a motion to hold the temporary restraining order in abeyance, pending a hearing on its motion, and on appellant's application for preliminary injunction, which motion was granted, pending the December 13 hearing. On December 10, 1976, appellant filed a first amended complaint, adding a party as a defendant. Subsequently, three more parties were added as defendants.

At the December 13, 1976, hearing, Food Giant filed an answer and counterclaim and a motion for continuance, which motion was granted, and the cause was continued until December 28, 1976, in order to allow service of the counterclaim on the Attorney General of Alabama. On December 22, 1976, the court entered an order continuing the case until January 10, 1977.

On January 6, 1977, appellant filed a request for a pretrial conference, interrogatories, a request for the production of documents, a motion to shorten time to answer interrogatories, and a motion for a continuance. These motions were denied. On that same date, the Attorney General intervened on behalf of the appellees and filed his answer and counterclaim.

On January 10, 1977, the trial commenced, ore tenus. Also, on January 10, 1977, appellant rescinded Regulation 115-1, and removed minimum price controls, effective immediately. Appellees, on January 11, 1977, moved to dismiss appellant's complaint and application for preliminary injunction, due to appellant's action. The Circuit Court granted appellee's motion to dismiss appellant's complaint, and the case proceeded to trial on appellees' counterclaim.

On March 3, 1977, final judgment was entered containing the findings enumerated above.

Appellant filed a motion for new trial, which was subsequently withdrawn, and notice of appeal. A stay order was entered by the Circuit Court on March 6, 1977, and dissolved on April 7, 1977. A new motion for stay was also denied. Appellant's motion for stay, filed in this Court, was granted on April 12, 1977.

Appellant makes a number of contentions on appeal, including the contentions (1) that the trial court erred in holding that the legislative grant of authority to regulate prices, contained in the Act, constitutes an unauthorized delegation of legislative power in violation of the due process clause of the State Constitution; (2) that the trial court erred in holding that appellant is permanently enjoined from setting prices at the producer, wholesale and retail levels, due to its unconstitutional administration and application of the Act, and in holding that the legislature's attempt to set prices at the wholesale and retail levels violates both the State and Federal Constitutions, because the wholesale and retail sale of fluid milk is not a business so affected with the public interest as to warrant price fixing; and (3) that the trial court erred in holding that the Alabama Dairy Commission Act and the regulations promulgated pursuant thereto place an unconstitutional burden on interstate commerce.

We agree with appellant and therefore reverse and remand.

We shall consider these contentions seriatim.

I. UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER

In Norton v. Lusk, 248 Ala. 110, 26 So.2d 849 (1946), this Court made the following observations, which we think are pertinent here, viz:

"This court in the case of Porter Coal Co. v. Davis, 231 Ala. 359, 362, 165 So. 93, in discussing the proposition, took occasion to notice approval of a statement by the United States Supreme Court, which we reassert as appropriate here: The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside the halls of legislation. United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 484, 55 L.Ed. 563; Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789; Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294."

At the time the original Alabama Dairy Commission Act was passed, the argument that it constituted an unconstitutional delegation of legislative power in violation of the due process clause of our State Constitution was pressed upon this Court and summarily rejected, viz:

"It is also contended that the act violates section 44 of the Constitution of Alabama, in that it attempts to confer legislative authority upon the milk control board to fix prices, milk sheds, and rules and regulations. This contention is likewise without merit. (Citations omitted.)"

Franklin v. State ex rel. Alabama State Milk Control Board, 232 Ala. 637, 169 So. 295 (1936).

More recently, this holding was cited with approval in Dixie Dairies v. Alabama State Milk Control Board, 286 Ala. 198, 238 So.2d 551 (1970), as well as in Baxley v. Alabama Dairy Commission, 360 F.Supp. 1159 (M.D.Ala.1970), by a three judge federal panel.

Appellees have failed to advance sufficient persuasive argument to convince us that Franklin, Dixie Dairies, and Baxley were decided incorrectly. This is particularly true since this Court presumes that statutes are constitutional, and we will not hold them unconstitutional unless convinced beyond a reasonable doubt of their unconstitutionality. Crabtree v. City of Birmingham, 292 Ala. 684, 299 So.2d 282 (1974); Johnston v. Alabama Public Service Commission, 287 Ala. 417, 252 So.2d 75 (1971).

"This Court has often stated the principles by which it is guided in determining the constitutionality of a legislative act. In Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944), Chief Justice Gardner summarized this State's law:

'Uniformly, the courts recognize that this power (to strike down a legislative act as violative of the constitution) is a delicate one, and to be used with great caution. It should be borne in mind, also, that legislative power is not derived either from the state or federal constitutions. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the legislature has no bounds and is as plenary as that of the British Parliament. It follows that, in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law.

'Another principle which is recognized with practical unanimity, and leading to the same end, is that the courts do not hold statutes invalid because they think there are elements therein which are violative of natural justice or in conflict with the court's notions of natural, social, or political rights of the citizen, not guaranteed by the constitution itself. Nor even if the courts think the act is harsh or in some degree unfair, and presents chances for abuse, or is of doubtful propriety. All of these questions of...