Franklin v. State ex rel. Alabama State Milk Control Board, 6 Div. 923

CourtSupreme Court of Alabama
Citation169 So. 295,232 Ala. 637
Docket Number6 Div. 923
Decision Date11 June 1936

169 So. 295

232 Ala. 637


6 Div. 923

Supreme Court of Alabama

June 11, 1936

Rehearing Denied July 16, 1936

Appeal from Circuit Court, Jefferson County; J.F. Thompson, Judge.

Bill for injunction by the State, on the relation of the Alabama State Milk Control Board, against H.G. Franklin. From a decree overruling a demurrer to the bill and overruling motion to dissolve temporary injunction, respondent appeals.


BROWN, J., dissenting. [169 So. 296]

Hugh A. Locke, of Birmingham, for appellant.

D.S. Satterwhite, White E. Gibson, White E. Gibson, Jr., and Dan. M. Gibson, all of Birmingham, for appellee.

KNIGHT, Justice.

The appeal in this case is prosecuted by the appellant, respondent in the court below, from a decree of the circuit court of Jefferson county, overruling respondent's demurrers to the bill filed against him by the Alabama state milk control board, and from the decree overruling the respondent's motion to dissolve the temporary injunction.

The case involves the constitutionality of the act known as the "Milk Control Board," so termed and called in the act (Gen.Acts 1935, p. 204).

The bill charges that the appellant "sold from his store, on divers occasions, sweet milk retailed and delivered at the door steps of consumers within the boundaries of the Birmingham Milk Shed at a price of thirteen cents per quart, which is less than the minimum price fixed by the Alabama State Milk Control Board for the sale of such milk in the Birmingham Milk Shed." That respondent has stated to the complainant his intention to continue to sell milk at a price less than that fixed by the said board; and that said unlawful conduct on the part of respondent, if allowed to continue, will cause irreparable injury to the milk dealers, producers, and producer-distributors, who are complying with the lawful orders of the board in marketing and selling milk in the Birmingham milk shed.

The prayer of the bill was for the issuance of a temporary injunction or restraining order, enjoining or restraining the respondent from selling milk below the minimum prices fixed for the sale of such milk by the Alabama state milk control board; and upon final hearing for a permanent injunction.

The bill was filed on December 4, 1935, and on the same day, on the order of the circuit judge, Hon. J.F. Thompson, a temporary injunction, in accordance with the prayer of the bill, was issued and served upon the respondent.

The respondent appeared and moved to dissolve the injunction, and also demurred to the bill on numerous constitutional grounds. The court overruled the motion and also the demurrers, and from this decree he appeals.

The demurrers of the respondent take the point that the act creating the Alabama state milk control board offends sections 5, 6, 11, 13, 42, 43, 44, 45, 48, 103, and 139 of the State Constitution, and also amendments 5, 7, and 14 of the Constitution of the United States.

The act in question was approved by the Governor of Alabama on July 9, 1935 (Gen.Acts 1935, p. 204).

By this act the Legislature of Alabama, inter alia, created and established a milk control board, with certain defined powers [169 So. 297] and duties, among those powers and duties was the power to designate natural marketing areas, which shall constitute the respective milk sheds of the state, and to fix, by official order, minimum and maximum prices for milk in the different milk sheds.

In view of the fact that the Legislature passed the act as an emergency matter, we deem it profitable, for a proper understanding of the applicable rules of law applying to such legislation, that certain provisions of the act should be here quoted.

Section 1 of the act provides:

"That 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 the 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, however effectual such sanitary regulations may be attempted to be enforced, that health regulations alone are insufficient to prevent disturbances in the milk industry which threatens to destroy and seriously impair the future supply of milk and 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, to eliminate speculation and waste and to make the distribution of necessary commodities between the producer and consumer as direct as can be efficiently and economically done and to stabilize the marketing of such commodities, including milk, through the organization and operation of Producers and Producer-Distributors Cooperative Associations. That the normal process of producing and marketing milk has come to be a cooperative industry of vast importance to the State and of vital interest to the consuming public, which ought to be safeguarded and protected in the public interest That the present economic depression, through which we have been and are now passing, and the disparity of the prices received by producers and producer-distributors and the prices which such producers and producer-distributors are forced to pay for articles purchased, has broken down the orderly exchange of commodities produced and marketed by them for commodities purchased by them, has seriously impaired the assets of producers and producer-distributors and dairy assets supporting the credit structure of this State and has created an emergency which the Federal Congress has recognized and has attempted to meet by Legislation, granting the Secretary of Agriculture certain powers relative to the production, sale and distribution of agricultural products including milk. Actual experience has shown that the exercise of State authority, and State regulation in addition to Federal regulation, is necessary to protect the public welfare and health of this State and provide a constant and adequate supply of milk to the public. That the necessity of pure and wholesome milk as an article of food, that the unfair, unjust, destructive and demoralizing trade practices which have been and are now being carried on in the production, production and distribution, sale, processing and distribution of milk, the serious disturbances which have taken place in industry, the maladjustment of prices of farm commodities, with prices which farmers are compelled to pay, and the inability of Federal Regulations to function in this economic emergency, without the cooperation of the State Agencies, has created an emergency in this State which required immediate correction. The foregoing statement of facts, policy and application of this law are hereby declared a matter of legislative determination."

The legislative declaration set forth in the quoted section of the act discloses that the Legislature of Alabama, at that time, was of the opinion that there did in fact exist an emergency, and that the conditions then prevailing in the milk industry of the state threatened to destroy and seriously impair the future supply of milk to the people of the state.

In view of the ruling upon the demurrer by the trial court, and the legislative declaration of the existence of an emergency in the milk industry, which at least is prima facie true, we are justified [169 So. 298] in treating the case on this appeal 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. Chastleton Corporation v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841; People v. Title & Mortgage Guarantee Co., 264 N.Y. 69, 190 N.E. 153, 96 A.L.R. 297; Wilson Banking Co. Liquidating Corp. v. Colvard, 172 Miss. 804, 161 So. 123.

In determining the validity of the act now attacked upon constitutional grounds, the mudsill question to be determined is whether or not the enactment was a reasonable exercise of the police power of the state; or, in other words, whether the relief intended to be given is of a character appropriate to the existing emergency, and reasonably intended to protect against, or to alleviate, the calamitous conditions prevailing or threatened.

The limits of a state's police power has never been fixed, nor its boundaries defined. It is not subject to any definite limitations or boundaries, but it represents the state's great reserve power, and is at all times coextensive with the necessities of the case and the safeguard of the public interest. State v. Kartus, 230 Ala. 352, 162 So. 533, 101 A.L.R. 1336, 1337; Camfield v. United States, 167 U.S. 518, 524, 17 S.Ct. 864, 42 L.Ed. 260.

In the case of Samuel Thurlow v. Commonwealth of Massachusetts, 5 How. 504, 583, 12 L.Ed. 256, Chief Justice Taney, in speaking of the police power of a state, made the following observation:

"But what are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law, or a law to punish offences, or to establish courts of justice, or

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