State Bd. of Milk Control v. Richman Ice Cream Co.

• Decision Date: 26 November 1934
• Citation: 175 A. 796
• Parties: STATE BOARD OF MILK CONTROL v. RICHMAN ICE CREAM CO.
• Court: New Jersey Court of Chancery

175 A. 796

STATE BOARD OF MILK CONTROL

v. RICHMAN ICE CREAM CO.

Court of Chancery of New Jersey.

Nov. 26, 1934.

Syllabus by the Court.

1. The so-called Milk Control Act, as contained in chapter 169, P. L. 1933, p. 353 (N. J. St. Annual 1933, § 81—162A (25) et seq.), is constitutional legislation.

2. The purchase and use of milk for the purpose of manufacturing ice cream is not within the purview of said act.

3. While the history of legislation, i. e., the steps taken in the enactment of the law as disclosed by the legislative records, may be used as aids to determine the legislative intent, yet it may not be used to add to, take from, or entirely abrogate the law as enacted.

Suit by the State of New Jersey, on the relation of the State Board of Milk Control, against the Richman Ice Cream Company for an injunction.

Injunction denied.

David T. Wilentz, Atty. Gen. (Edward W. Currie, Asst. Atty. Gen., of counsel), for complainant.

Waddington & Mathews, of Camden, for defendant.

SOOY, Vice Chancellor.

Complainant seeks to enjoin the defendant from alleged violations of the so-called Milk Control Act, chapter 169, P. L. 1933, p. 353 (N. J. St. Annual 1933, § 81—162A(25) et seq.). and, at the final hearing, it was conceded that the defendant had not complied therewith in so far as such milk as is used in the manufacture of ice cream was concerned, but that it had attempted to comply in so far as milk being used by it for other purposes went.

There appear to have been some minor violations with respect to the milk other than that used in manufacture, but those matters have been adjusted and do not require injunctive relief.

Defendant attacks the constitutionality of the act on various grounds, all of which have been disposed of so far as this court is concerned by the decisions in the case of People v. Nebbia, 262 N. Y. 259, 186 N. E. 694, and the Supreme Court of the United States in Nebbia v. New York, 291 U. S. 502, 54 S. Ct. 505, 78 L. Ed. 940, 89 A. L. R. 1469, and an unreported case in the Court of Chancery of State of New Jersey v. Newark Milk Co.,¹ decided by Vice Chancellor Berry.

The question for determination is, Do the provisions of the "Milk Act" extend to the purchase of milk intended to be used for manufacturing ice cream? and this question is to be determined by the legislative intent, as gathered from the act, with recourse to such aids in determining that intent as have been presented to the court.

I have before me the act as finally passed, and the original bill as introduced on April 4, 1933, by Assemblyman Newcomb, and, in addition to that, the Milk Control Act of the state of New York (Agriculture and Markets Law [Consol. Laws N. Y. c. 69] § 300 et seq., as added by Laws 1933, c. 158), to which reference is made in the act sub judice.

Taking up the provisions of chapter 169 of the Pamphlet Laws of 1933, we find a preamble consisting of several recitals:

(a) During the past six months groups of milk producers have joined together and adopted means or methods to control the production, sale, and distribution of fluid milk, in order to force a better return to the milk producers.

(b) The methods pursued have tended to a denial to the public of a sufficient supply of good wholesome milk.

(c) By reason of nonavailability of milk markets for the local producer, fluid milk is being shipped into the state of New Jersey and into New York and Philadelphia, at such prices that producers who supply milk "to the residents of this State" are unable to receive a sufficient return.

(d) Efforts are now being made in Philadelphia and New York and New Jersey to restrict the milk supply by picketing, etc., in order to force a higher price for fluid milk, with the result that New York has recognized the seriousness of the situation and has "already enacted into law a measure which they believe will protect the citizens of that commonwealth."

(e) "By reason of the action of the State of New York it becomes imperative that similar precautionary measures be put into effect in this State."

Then follows the declaration of legislative intent and it is recited that the legislation was passed in the exercise of the police power reserved to the states in order to protect the public health and welfare of the inhabitants of the state, and as a necessary measure for immediate preservation of the public peace, health, and safety.

The reason given for such necessity is:

"That evils consisting as hereinbefore recited * * * are now being carried on in the production, sale and distribution of milk for human food, which are likely to result in the undermining of health * * * the demoralization of the agricultural interests * * * and the creation of conditions inimical to the health of milk consumers."

Taking the act itself and not resorting to outside aids in construing its provisions, it seems to me that the legislative intent was not to include within the purview of the act milk purchased to be used for the manufacture of ice cream.

It is true that a reading of the "Declaration of Legislative Policy and Intent" demonstrates that the Legislature intended to correct evils recited in the preamble to the act and that these evils were being "carried on in the production, sale and distribution of milk for human food, which are likely to result in the undermining of health regulations, * * * the demoralization of the agricultural interest * * * engaged in the production of milk, and the creation of conditions inimical to the health of milk consumers."

To accomplish this result, the Legislature enacted into law the act in question.

It must be conceded that the title of the act is broad enough to include milk purchased and intended to be used for manufacture into ice cream and that the Legislature had as much right to control and regulate such milk as the rest of the supply, but it seems to me that the Legislature has clearly defined the milk it intended to regulate and control.

Article 1 of the act (N. J. St. Annual 1933, § 81—162A(25) defines the milk spoken of by the Legislature as follows:

"The natural product of a dairy animal or animals, and includes such product when cooled, pasteurized, condensed or concentrated except when contained in hermetically sealed cans, with a view to being sold as milk and also cream, buttermilk and skimmed milk, sold or intended to be sold as such for human food; said term excludes the natural product of a dairy animal or animals sold or intended to be sold for any other purpose."

This definition includes and excludes. It includes the natural product of dairy animals when cooled (the natural product cooled), pasteurized (the natural product heated), condensed, or concentrated (milk from which the water has been evaporated or extracted, i. e., not the natural product, but manufactured), and specifically states that the inclusion applies to such product only when it is handled with a view to being sold as milk, and also cream, buttermilk, and skimmed milk, and then only when sold or intended to be sold as such for human food. The result is that the Legislature evidently did not intend to attempt to control the milk supply, no matter what its form, unless it was milk intended to be sold as milk, cream, buttermilk, and skimmed milk for human food. A dealer could, therefore, purchase any quantity of milk at any price and from any source for any other purpose and not be subject to the regulation of the act or to its penalties, and, in order to make this feature clear, the Legislature expressly excludes "the natural product" of dairy animals sold or intended to be sold for any other purpose than "as milk and also cream, buttermilk and skimmed milk * * * for human food."

The Legislature, of course, knew that amongst the many uses to which milk was put was the manufacture of ice cream, and with that knowledge, distinctly said that the milk about which they were concerned and legislating was milk to be "sold as milk, and also cream, buttermilk and skimmed milk, sold or intended to be sold as such for human food." (N. J. St. Annual 1933, § 81—162A(25).

Having in mind the legislative definition of milk, we go to the title of the act, "An Act to regulate and control the purchase, distribution and sale of fluid milk and cream and to declare an emergency, and for this purpose to create a State board of milk control, defining its powers and duties and providing penalties for violations."

A more comprehensive title and one including the definition would have been—An act to control the purchase, distribution, and sale of the natural product of a dairy animal or animals, including such product when cooled, pasteurized, condensed, or concentrated (except when contained in hermetically sealed cans), with a view to being sold as milk, and also cream, buttermilk, and skimmed milk, sold or intended to be sold as such for human food; said terms exclude the natural product of a dairy animal or animals sold or intended to be sold for any other purpose.

Assuming the above definition of milk, as read into the title of the act, may it be said that the Legislature intended to include within the purview of the act milk intended to be manufactured into ice cream and to be sold as such for human food?

It seems quite apparent that the Legislature sought to correct the evil practices and the effects thereof, as recited in the declaration of intent, by regulating and controlling the milk supply other than that to be used in the manufacture of ice cream, cheese, soup, etc., and that it believed that the great percentage of fluid milk was used as such for human food, and to regulate and control the great bulk would be sufficient.

Now then, resorting to outside aids for the...