James v. Todd

• Citation: 267 Ala. 495,103 So.2d 19
• Decision Date: 22 August 1957
• Docket Number: 3 Div. 769
• Parties: Buford JAMES et al. v. A. W. TODD, as Commissioner of Agriculture and Industries of the State of Alabama.
• Court: Alabama Supreme Court

Page 19

103 So.2d 19

267 Ala. 495

Buford JAMES et al. v. A. W. TODD, as Commissioner of Agriculture and Industries of the State of Alabama.

3 Div. 769.

Supreme Court of Alabama.

Aug. 22, 1957.

Rehearing Denied June 5, 1958.

Bowers, Dixon, Dunn & McDowell, Birmingham, and Sol E. Brinsfield, Jr., Montgomery, for appellants.

Joe T. Patterson, Atty. Gen., and W. E. McIntyre, Jr., Sp. Asst. Atty. Gen., for State of Mississippi, intervener.

John Patterson, Atty. Gen., Gordon Madison and Geo. O. Miller, Asst. Attys. Gen., for appellee.

Walter P. Gewin, Tuscaloosa, and Watkins C. Johnston, Montgomery, amici curiae, in support of appellee.

MERRILL, Justice.

This is an appeal from a decree of the Circuit Court of Montgomery County, In Equity, holding constitutional Act No. 570, Acts of Alabama 1955, page 1239, listed as Tit. 22, §§ 231(6)-231(13), Pocket Part, Code of 1940.

The action was brought by one Tennessee and five Mississippi milk producers. It is a class action on behalf of other milk producers in those States who engage in the business of producing and selling milk to distributors who later sell and distribute milk and milk products in the State of Alabama. The bill of complaint asks for a declaratory judgment holding Act No. 570 unconstitutional and void. In addition, the bill prayed for a temporary restraining order pending decision and for a permanent injunction. A temporary restraining order was issued by Judge Jones on the date of the filing of the bill against the Commissioner of Agriculture and Industries, restraining him from enforcing the provisions of Act. No. 570. This restraining order remained in effect during the pendency of the action and until the rendering of the decision by the trial court.

After the filing of the bill, the State of Mississippi was allowed to intervene as a party complainant.

The bill was amended several times and ultimately a hearing was had on the bill as amended and the respondent's answers. Considerable testimony was taken either ore tenus or by deposition on behalf of the complainants. The respondent offered no evidence. The decree of the trial court held Act. No. 570 to be constitutional and dissolved the temporary restraining order to be effective ten days after the date of the decree. Within that ten days, complainants applied for and obtained a reinstatement of the temporary restraining order from this court pending our decision in the cause.

The contentions raised by the assignments of error may be grouped as follows:

1. The Act is unconstitutional because it violates appellants' rights under the Fourteenth Amendment (the privileges or immunities, the due process and the equal protection clauses).

2. The Act is unconstitutional because it violates Section 2 of Article 4 of the Constitution of the United States, 'The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States.

3. The Act is unconstitutional because it violates the Commerce Clause of the Constitution of the United States Const. art. 1, § 8, cl. 3.

4. The rules and regulations promulgated by the Department of Agriculture and Industries under the law are unconstitutional.

5. The court erred in refusing to permit appellants to introduce testimony by members of the Legislature to show the intent and history of the legislation, the circumstances surrounding its adoption and the evil thereby sought to be remedied.

The question presented to us is whether or not Act. No. 570 is unconstitutional on its face. The only action taken by the respondent Todd, as Commissioner of Agriculture and Industries, under the Act was to promulgate the rules and regulations as provided in the Act. There has been no application or enforcement of the Act or of the rules and regulations because the Commissioner has been under injunction continuously and has been prevented from enforcing, applying or administering the Act.

Section 1 of Act No. 570 expressly states and declares its purpose:

'The purpose of this Act is to more effectively utilize the existing agencies or departments of the State of Alabama in regulating production, processing, and distribution of milk and milk products to the end that the inhabitants of this State will be supplied with a wholesome and healthful supply of milk, cream, milk products, and byproducts thereof. It is, therefore, declared to be in the public interest that milk and milk products be produced, processed, and distributed and otherwise handled under requirements as hereinafter provided for and as otherwise provided by law.'

Section 3 is, in part, as follows:

'No milk shall be shipped or transported into the State of Alabama from another state unless such milk is produced and handled under sanitary conditions no less adequate in protection of public health than milk produced in the State of Alabama and authority for shipping or transporting shch milk into the State of Alabama must be authorized by permits as provided in Act No. 65, Legislature of 1955 (2nd Special Session) and must be authorized by permit by the Commissioner of Agriculture & Industries and said Commissioner is hereby authorized to issue or revoke such permits as have been issued by the Commissioner of Agriculture under rules and regulations adopted under the provisions of this Act providing for a method of ascertaining the conditions under which such milk shipped into the State of Alabama was produced and handled. * * *'

This is not a situation where a State statute must fall because Congress chose to exercise its paramount power to regulate commerce under that part of the Constitution of the United States which provides that the Congress shall have power to regulate commerce among the several States. Congress has not chosen to act in this field but, on the contrary, as stated in Milk Control Board of Pennsylvania v. Eisenberg Farm Products, 306 U.S. 346, 59 S.Ct. 528, 530, 83 L.Ed. 752, '* * * in matters requiring diversity of treatment according to the special requirements of local conditions, the states remain free to act within their respective jurisdictions until Congress sees fit to act in the exercise of its overriding authority. One of the commonest forms of state action is the exercise of the police power directed to the control of local conditions and exerted in the interest of the welfare of the state's citizens.' In the Eisenberg case, the Supreme Court of the United States recognized that the milk business is essentially local and, therefore, subject to the police power of the State. Early in the history of our country, Chief Justice Marshall said, speaking of inspection laws, that such laws are 'a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to the general government: all of which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, * * * are component parts of this mass.' Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23.

Under its police power, the State of Alabama is authorized to enact laws designed to protect the health of its citizens and more particularly where milk is concerned because of its nutritional importance to human beings and because of its susceptibility to contamination. Franklin v. State, 232 Ala. 637, 169 So. 295; Taylor v. State, 237 Ala. 178, 186 So. 463. The Legislature may even grant to a municipality the power to provide health regulations. Gilchrist Drug Co. v. City of Birmingham, 234 Ala. 204, 174 So. 609, 111 A.L.R. 103; Walker v. City of Birmingham, 216 Ala. 206, 112 So. 823. That adequate inspection laws are imperative is obvious in view of the fact that Alabama imports from Mississippi alone approximately fifty-two million pounds of milk annually.

Prior to 1955, there was no state agency with power to enforce health regulations pertaining to the handling, processing and production of milk within the State. The standards varied from county to county and the enforcement was at a local level. In the second extraordinary session of the 1955 Legislature, Act No. 65, Acts of Alabama 1955, p. 176, approved April 13, 1955, listed as Tit. 22, §§ 231(1)-231(5), Pocket Part, Code 1940, changed this status and provided for uniformity of enforcement. Under Act No. 65, no milk producer or distributor in Alabama or out of the State was permitted to do business in Alabama without first securing a joint permit from the state and county boards of health. Act No. 570 did not become effective until October 9, 1955.

It should be noted that the quoted part of Section 3 of Act No. 570 shows that the permits required under that Act are in addition to the permits required under Act No. 65, and all of the provisions of Act No. 65 remain in full force and effect.

Appellants urge that Act No. 570 is unconstitutional in many of the respects indicated in the assignments of error because it applies only to milk produced outside Alabama, and does not apply to local and out-of-state milk as does Act No. 65.

Appellants rely on several cases which hold in effect that one State may not, under the guise of exerting its police power, discriminate against products of other States by requiring permits under inspection laws. These cases are distinguishable from the instant case in that they deal with the administration or enforcement of their respective statutes and not with the statute as viewed in the abstract or on its face. As previously noted, there has been no enforcement of Act No. 570 or of the rules and regulations promulgated thereunder. Examples of the cases cited by appellants are:

Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S.Ct. 295, 9 L.Ed. 329, where the appellant was denied a license to sell its milk products within Madison, Wis., solely because its pasteurization plants were more than five miles away.

Hood & Sons v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865, where ...