Harris v. Duncan

• Decision Date: 13 November 1951
• Docket Number: No. 17548,17548
• Citation: 67 S.E.2d 692,208 Ga. 561
• Parties: HARRIS v. DUNCAN.
• Court: Georgia Supreme Court

Page 692

67 S.E.2d 692

208 Ga. 561

HARRIS v. DUNCAN.

No. 17548.

Supreme Court of Georgia.

Nov. 13, 1951.

Rehearing Denied Nov. 28, 1951.

Syllabus by the Court.

The act, Ga.L. 1937, p. 247, as amended, Code, Ann.Supp. § 42-523 et seq., known as the Milk Control Law, in so far as it provides for the Board to fix the prices of milk, is in violation of the due process clause of the State Constitution, article 1, section 1, paragraph 3 (Code, Ann., § 2-103).

Charles G. Duncan, as Chairman of the Milk Control Board, hereafter referred to as the Board, filed a petition in the Superior Court of Mitchell County against J. J. Harris, trading as Harris Pedigree Farms, and Camilla Dairies, hereafter referred to as Harris. The petition as amended alleged: that, under the act of 1937, Ga.L. 1937, p. 247, as several times amended, and known as the Milk Control Law, Code, Ann.Supp. § 42-523 et seq., the Camilla Milk Shed, comprising all of Mitchell County, had been established under the terms of the act, and pursuant thereto the Board had set the price of milk at 23 cents per quart in said Milk Shed; that Harris was in the territory of that Shed and subject to the terms of the Milk Control Law, and was violating the law by selling milk at less than the minimum price established under the act; and that the application of Harris for a license had been denied after a hearing. It was prayed that he be enjoined from selling milk in that Shed without a license and in violation of the price established by the Board.

Harris filed demurrers, general and special, to the petition. The trial judge overruled the demurrers. On the trial of the issues the court granted a temporary injunction. Exceptions are to the ruling on demurrer, granting the injunction, and to rulings on the admission and exclusion of evidence.

O. B. McElvey, Pelham, Robert Culpepper, Jr., Camilla, for plaintiff in error.

Eugene Cook, Atty. Gen., J. R. Parham, Asst. Atty. Gen., Frank S. Twitty, Sp. Deputy Asst. Atty. Gen., for defendant in error.

ATKINSON, Presiding Justice (After stating the foregoing facts).

The act, Ga.L. 1937, p. 247, as amended Code, Ann.Supp. § 42-523 et seq., with the emergency feature thereof stricken by the act of 1949, p. 78, is here attacked on the ground that the authority therein to fix the price of milk is in violation of article 1, section 1, paragraph 3 of the State Constitution, Code, Ann. § 2-103, which is the due process clause, in that it restricts the freedom of contract. This act has three times been before this court on questions attacking its constitutionality. Bohannon v. Duncan, 185 Ga. 840, 196 S.E. 897; Gibbs v. Milk Control Board of Georgia, 185 Ga. 844, 196 S.E. 791; and Holcombe v. Georgia Milk Producers Confederation, 188 Ga. 358, 3 S.E.2d 705. Neither of these cases are full-bench decisions. Though the Bohannon case and the Holcombe case each rules that the price-fixing feature of the act is not unconstitutional, yet, not being full-bench decisions, they are not binding authority, and this court can approach the question unfettered by these previous rulings. Neither is this court bound in construing our State Constitution by the rulings of the courts of other States, many of which are based on emergency legislation, or of the United States Supreme Court, which has twice, by divided decisions, upheld the right of a State to authorize the fixing of prices for milk. Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, and Highland Farms Dairy v. Agnew, 300 U.S. 608, 57 S.Ct. 549, 81 L.Ed. 838.

Before the General Assembly can authorize price fixing without violating the due process clause of our Constitution, among other requirements, it must be done in a business or where property involved is 'affected with a public interest,' and the milk industry does not come within that scope.

We give credit to the view as taken by Presiding Justice Samuel C. Atkinson in his dissenting opinion in the Holcombe case, supra [188 Ga. 358, 3 S.E.2d 717], and recognize 'that as a health measure reasonable regulations may be enacted by the legislature, applying to sale and distribution of milk under the police power of the State,' but by its provision to fix the price 'it thus takes from the seller and purchaser the right to agree upon the price of their choice * * *. The right to contract is a property right which is protected by the due-process clauses of our State and Federal Constitutions, which can not be abridged by mere legislative act. * * * To allow abridgment * * * by taking from them the right to agree upon the price, would be to put legislation, whether enacted in exercise of claimed general or police power of the legislature, above the constitution. In this view so much of the act in question as attempts to fix the price * * * is void as violative of the due-process clauses of the State and Federal constitutions.'

We are also impressed by the sound view expressed by Mr. Justice McReynolds in his dissenting opinion in Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 522, 78 L.Ed. 940, which was a similar case where a statute of the State of New York providing for the fixing of prices for milk was under review. It is there stated: 'Is the milk business so affected with public interest that the Legislature may prescribe prices for sales by stores? This Court has approved the contrary view; has emphatically declared that a state lacks power to fix prices in similar private businesses.' And then is cited a long list of cases by the United States Supreme Court. He then quotes from Williams v. Standard Oil Co., 278 U.S. 235, 49 S.Ct. 115, 73 L.Ed. 287, as follows: "It is settled by recent decisions of this court that a state Legislature is without constitutional power to fix prices at which commodities may be sold, services rendered, or property used, unless the business or property involved is 'affected with a public interest." Considered affirmatively, 'it means that a business or property, in order to be affected with a public interest, must be such or be so employed as to justify the conclusion that it has been devoted to a public use and its use thereby in effect granted to the public. * * * Negatively, it does not mean that a business is affected with a public interest merely because it is large or because the public are warranted in having a feeling of concern in respect of its maintenance."

While we recognize that the General Assembly was authorized to find that the milk industry was large, milk was a product of virtually universal use throughout the State, that it was perishable, important as a humand food, and affected the health of the people, and to further find that it was important to keep an adequate and constant supply at a price fair to both producer and consumer; yet such facts would not qualify the milk industry as being a business 'affected with a public interest,' notwithstanding the public or the General Assembly would have a feeling of concern in regard to its maintenance. For an industry or any particular business to become 'affected with a public interest,' its business or its property must be so applied to the public as to authorize the conclusion that it has been devoted to a public use and thereby its use, in effect, granted to the public.

The right to contract, and for the seller and purchaser to agree upon a price, is a property right protected by the due process clause of our Constitution, and unless it is a business 'affected with a public interest,' the General Assembly is without authority to abridge that right.

While we recognize that milk is an essential food and that a constant and sufficient supply is desirable, or even necessary, yet the same may be said of meat and bread. To let down the barriers of our Constitution and take away the right of contract by seller and purchaser as to milk, might well be applied to other food products. Once the constitutional barrier against infringement upon the right of free contract is down, and the gates become open to products because of their universal use by the public and its concern for a constant and adequate supply thereof, other products such as gasoline, oil, tobacco, clothing, and similar articles could well be the subject for price fixing.

As authority to authorize the price-fixing feature of the act in question, it is insisted that the private character of a business does not necessarily remove it from the realm of regulation of prices; and the usury laws, fixing the price which may be exacted for the use of money are cited therefor; and it is asserted that no business more essentially private in character can be imagined than that of loaning one's personal funds. This analogy runs through some of the decisions upholding the right to fix the price of milk, but we can see no essential resemblance between milk and money. One is a product of an animal and processed for consumption by the efforts of man; the other is a medium of exchange created and produced by the sovereign power, the sole purpose of its creation being that it be applied and devoted to the public for its use, and accordingly it has every indicia of a product affected with a public interest.

We are not unmindful that this act has been in force for some years and many communities have operated under its terms, and that disappointment and the necessity for readjustment will be experienced by some; but any wisdom or expediency of the act must yield to the provisions of the Constitution, the fundamental law of the land, and this court would be recreant to its duty if it failed to set aside an act which encroaches upon the rights of the people reserved to them by the Constitution.

Accordingly, the trial judge erred in overruling the general demurrer.

Judgment reversed.

All the Justices concur.

DUCKWORTH, Chief Justice (specially concurring).

The demurrer challenges the provisions of the amended act authorizing the...