Bohannon v. Duncan, 12017.

• Decision Date: 14 March 1938
• Docket Number: No. 12017.,12017.
• Citation: 196 S.E. 897,185 Ga. 840
• Parties: BOHANNON et al. v. DUNCAN.
• Court: Georgia Supreme Court

185 Ga. 840

196 S.E. 897

BOHANNON et al.

v.DUNCAN.

No. 12017.

Supreme Court of Georgia.

March 14, 1938.

Syllabus by Editorial Staff.

RUSSELL, O. J., dissenting.

Error from Superior Court, Fulton

County; Edgar E. Pomeroy, Judge.

Suit by J. K. Bohannon and others against C. G. Duncan, director, etc. To review a judgment for defendant, plaintiffs bring error.

Affirmed.

V. E. Adams, of Atlanta, for plaintiffs in error.

Pat Avery, Warren Moise, Crenshaw, Hansell & Gunby, Candler, Cox & Mc- Lamb, A. S. Clay, Harold Hirsch & Marion Smith and John H. Boman, Jr., all of Atlanta, and Grice & Grice, of Macon, for defendant in error.

Syllabus Opinion by the Court

PER CURIAM.

1. Since all reasonable presumptions favor the constitutionality of a legislative act, and the burden of showing to the contrary is on the attacking party, "legislative ascertainments and determinations of facts, unless plainly contrary to those matters of common knowledge of which the courts may take judicial notice, are entitled to such weight as to require clear allegation and proof showing the contrary before the courts would be justified" in so holding. Miami Home Milk Producers Ass'n v. Milk Control Board, 124 Fla. 797, 169 So. 541, 542. Section 1 of the "milk-control" act approved March 30, 1937, Ga.Laws 1937, pp. 247, 248, states as follows: "Declaration of Legislative Policy. As a matter of legislative determination, 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 is vital to the public health and welfare; that uneconomic practices in the production, transportation, processing, storage, distribution, and sale of milk within the State of Georgia constitute a constant menace to the health and welfare of the inhabitants of this State and undermine sanitary regulations and standards of content and purity; that, even with stringent enforcement of sanitary regulations, these uneconomic practices threaten seriously to impair and ultimately to destroy the supply of wholesome and healthful milk for adults and children within this State; that these facts have created an emergency situation; and that, to preserve the health of the people of this State, it is necessary in this emergency and in the public interest that the distribution and sale thereof be regulated as provided herein." The instant petition by milk consumers, attacking the act as preventing their purchase of milk at uncontrolled prices in the open market, set forth merely that "there is no emergency in Georgia authorizing legislative interference with a purely private industry such as the dairy business and the retail of milk to consumers in Georgia." Ac cordingly, irrespective of whether the constitutionality of the act depends upon the existence of the "emergency, " declared by the act to exist at the time it was passed (see Standard Oil Co. v. Marys-ville, 279 U.S. 582, 586, 49 S.Ct. 430, 431, 73 L.Ed. 856, and cit.; Borden's Farm Products Co. v. Ten Eyck, 297 U.S. 251, 263, 56 S.Ct. 453, 456, 80 L.Ed. 669), the petition not only failed to set forth any facts to controvert the legislative declaration on that subject, but failed to allege that no emergency existed at the time of the enactment. Therefore on demurrer the case will be treated "upon the theory that there was in fact such emergency at the time of the passage of the act, since we judicially know nothing to the contrary, " as was done by the Supreme Court of Alabama in passing upon a similar act and constitutional attack. Franklin v. State, 232 Ala. 637, 169 So. 295, 298, and cit. No averment is made and no facts arc alleged to authorize a contention that, although an emergency existed at the time of the enactment, the force and effect of the act have now ceased to exist, before August 15, 1941, the time declared by the act as the end of the "emergency period" and the continuance of the act, on the ground that such a pre-existing emergency has ceased to exist.

2. Under the decision of the Supreme Court of the United States in Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 514, 78 L.Ed. 940, 89 A.L.R. 1469, 1476, 1480, 1482, 1483, which upheld a similar New York milk control law, upon attack under the Fourteenth Amendment of the Constitution of the United States, and which decision as to that amendment is controlling and as to similar provisions in the State Constitution is strongly persuasive, the prohibitory provisions as to "due process of law" and "the equal protection of the laws, " Code, § 1-815, do not preclude the state Legislature from regulating a business "affected with a public interest, " which is the equivalent of saying "subject to the exercise of the police power, " where, as here, such regulation is not "unreasonable, arbitrary, * * * capricious, [or discriminatory], and the means selected * * * have a real and substantial relation to the object sought to be attained." Under that decision, such regulation may include "the prices to be charged for the products or commodities"; and "the function of courtsin the application of the * * * Fourteenth Amendments] is to determine in each case whether circumstances vindicate the challenged regulation as a reasonable exertion of governmental authority or condemn it as arbitrary or discriminatory." As was held in that case, the production, distribution and sale of milk to the general public is a business that...