Alabama State Milk Control Bd. v. Graham
| Decision Date | 18 December 1947 |
| Docket Number | 1 Div. 305. |
| Citation | 250 Ala. 49,33 So.2d 11 |
| Court | Alabama Supreme Court |
| Parties | ALABAMA STATE MILK CONTROL BOARD et al., v. GRAHAM. |
A A. Carmichael, Atty. Gen., MacDonald Gallion, Asst. Atty Gen., and Chas. B. Aycock, of Birmingham, for appellants.
H. M. Aldridge, of Mobile, for appellee.
The order of the Milk Control Board exhibited with the bill is as follows:
'State of Alabama
'Milk Control Board
'This matter coming on to be heard before the Alabama State Milk Control Board, sitting in Mobile, Mobile County, Alabama, on October 2, 1945, and the Board, having taken and considered the evidence, finds as follows:
'1. That the best interests of the industry and of the general public will be best served by further regulating the distribution and delivery of fluid milk in the Mobile Milk Shed.
'2. That all deliveries of fluid milk on retail routes be confined to every other day. As used herein the term 'every-other-day-delivery' is defined as the movement of fluid milk from one point of origin to a point of destination within any one day.
'Now, therefore, by reason of the foregoing, it is by the Board, ordered, adjudged and decreed as follows:
'1. That all deliveries of fluid milk on retail routes be confined to an every-other-day basis to any one customer.
'2. That all rules and orders or parts of rules and orders in conflict herewith are hereby expressly repealed.
'This order is subject to repeal or amendment by the Board at any time.
'All other matters are reserved.
'Done and ordered this 20th day of October, 1945.
'(Signed) James F. Stoner, Chairman
'Sam C. Summers
'Mrs. F. A. McCartney
'Sam A. Cattlett
'Charles H. Miller.'
This appeal is from a decree of the equity court overruling the demurrer to a bill in equity. The bill of complaint was filed by Ruffin J. Graham, doing business as Ruffin Graham Dairies against the Alabama State Milk Control Board, the individuals comprising the Alabama State Milk Control Board and J. B. Sanford, individually, and as Inspector for the Alabama State Milk Control Board. The bill of complaint in one aspect attacks and seeks injunctive relief, with damages, from 'Official Order No. 161' made by the Alabama State Milk Control Board. A copy of this order was attached as an exhibit to the bill of complaint and made a part thereof. It will appear in the report of the case. In the other aspect of the bill of complaint, the complainant seeks relief under the Declaratory Judgments Act, Code 1940, Tit. 7, § 156 et seq.
The allegations of the bill in substance show the following: The complainant is and for many years has been a licensed owner and operator of a substantial dairy business in the County of Mobile, Alabama. Milk is by common knowledge and by legislative determination a highly perishable and contaminable product of vital necessity to the public and demanding immediate distribution after production. Complainant has built up a large clientele who demanded and received daily deliveries of milk until the prohibition of war time regulations both by O. D. T. and the Alabama State Milk Control Board. Upon the end of the war and O. D. T. complainant recommenced daily deliveries, a reasonable exercise of his business, and by such resumption of daily deliveries his volume of business very substantially increased until stopped by order of the Alabama State Milk Control Board No. 161. Under authority of the aforesaid order respondents on May 12, 1947, cited complainant to cease daily deliveries under threat of a revocation of his license or suffer a penal fine of $500. As a result complainant complied, with large losses resulting directly therefrom. Such losses are increasing daily, are irreparable and demand immediate relief. Protests and requests for relief to respondents have been ignored and refused and complainant is confronted with a choice of compliance with the order and insolvency or disobedience and punishment. Order 161 is alleged to be void and without authority of law upon various grounds, which we shall proceed to discuss. A justiciable controversy is alleged to exist.
I. In 1935, during a period of economic crisis, the legislature decided that the milk industry in the state needed supervision not only from the standpoint of the industry itself, but also from the standpoint of the consumer and the general public. It appears that various factors produced this result, as shown by the legislative determination contained in the Act of 1935. General Acts 1935, p. 204 et seq. For example there appeared to be a need of regulation and supervision of fluid milk as to content, processing and purity because the vital part fluid milk has in the public health. Also there appeared to be a need for control of marketing areas, distribution and fixing of prices in order to stabilize the industry. The legislative determination in the Act of 1935 was in large part readopted in the legislative determination in the Act of 1939. General Acts 1939, p. 267 et seq. In Taylor v. State, 237 Ala. 178, 186 So. 463, it was noted that while the nation-wide economic depression was sufficient to quicken the police power of the state and so sustain the Act of 1935, matters vital to the public health were also sufficient to justify that legislation. The foregoing legislative determination has been brought forward and now appears as § 205, Title 22, Code of 1940, from which we quote in part as follows.
'It is hereby declared that milk is a necessary article of food for human consumption: that the production and maintenance of an adequate supply of healthful milk of proper chemical and physical content, free from contamination, is vital to the public health and welfare, and that the production, transportation, processing, storage, distribution and sale of milk, in the State of Alabama, is an industry affecting the public health and interest; that unfair, unjust, destructive and demoralizing trade practices have been and are now being carried on in the production, marketing, sale, processing and distribution of milk, which constitute a constant menace to the health and welfare of the inhabitants of this state and tends to undermine sanitary regulations and standards of content and purity, that health regulations alone are insufficient to safeguard the consuming public from future inadequacy of a supply of this necessary commodity; that it is the policy of this state to promote, foster and encourage the intelligent production and orderly marketing of commodities necessary to its citizens, including milk, and to stabilize marketing of such commodities; that fluid milk is a perishable commodity easily contaminated with harmful bacteria, which cannot be stored for any great length of time, and which must be produced and distributed fresh daily, which supply cannot be regulated from day to day, but, due to natural and seasonal conditions fluctuates from day to day; that this surplus of milk, though necessary and unavoidable, unless regulated tends to undermine and destroy the fluid milk industry; that investigation and experience has shown that, due to the nature of milk and the conditions surrounding its production and marketing, that unless the producers, distributors and others engaged in the marketing of milk are gauranteed and insured a reasonable profit on milk, that both the supply and quality of milk are affected thereby to the detriment of and against the best interest of the citizens of this state whose health and well being are vitally affected thereby; * * *.'
It will be noted that the foregoing § 205 provides in substance that since fluid milk is a perishable commodity easily contaminated with harmful bacteria it cannot be stored for any great length of time and accordingly 'must be produced and distributed fresh daily.' Appellant insists that order No. 161 of the Alabama State Milk Control Board is contrary to the provisions of the statute because it requires 'that all deliveries of fluid milk on retail routes be confined to an every other day basis to any one customer.' It is argued that the order is at variance with the statute because it forbids the daily delivery of fluid milk to any one customer, that the word 'daily' in the act is in no sense synonymous with 'every other day' as provided in the order.
We think, however, that careful consideration of the order including the definition contained therein, will show that it does not prohibit the daily delivery of fluid milk. On the contrary the order contemplates daily production and delivery of fluid milk. Under the order the dairyman must deliver his milk on the same day on which it is produced. It is true that a two days supply of milk is delivered but the milk which will be a supply for two days, was produced on the same day as the day of delivery. In other words customer A will receive...
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