State v. Porter

Decision Date07 May 1920
CourtConnecticut Supreme Court

Appeal from District Court of Waterbury; Walter D. Makepeace Special Judge.

Grant Porter was charged with purchasing milk from producing dairymen to be resold at retail to consumers without having obtained a license. Demurrer to information sustained, and the State appeals. No error.

Arthur F. Ells, Pros. Atty., of Waterbury, for the State.

Charles G. Root, of Waterbury, for appellee.


This information was brought under chapter 194, P.A. of 1919, the first section of which provides that no person shall engage in the purchase from producing dairymen of milk or cream to be resold either to dealers or at retail to consumers without having obtained from the dairy and food commissioner a license to be issued by him under the provisions of this act. All licenses to run to the 1st day of July following the date of issue, and to be revocable by the commissioner for cause and after notice with a provision for appeal to the court of common pleas or the superior court in Hartford county, and the license fee is fixed at the rate of 50 cents a month. Section 2 of the act is as follows:

" Sec. 2. Each applicant shall furnish to the commissioner proof of his financial responsibility to meet such obligations as he may contract in the purchase of such milk and cream, or he shall furnish a bond, sufficient in amount and satisfactory to the commissioner, running to the state, to be filed with the commissioner, conditioned upon the faithful fulfillment of his obligations to producing dairymen for milk and cream purchased by him in the conduct of such business. Suit for forfeiture of such bond may be brought by the Attorney General in the name of the state in the court of common pleas or the superior court for Hartford county and the avails thereof shall be used by the dairy and food commissioner to satisfy, pro rata, the claims of producing dairymen against such licensee. Claims may be proved at a hearing before the dairy and food commissioner or his deputy, provided notice of such hearing shall have been given to all known parties in interest at least fifteen days prior to such hearing, and by newspaper publication."

Section 3 requires the licensee, on request, to file with the commissioner a statement under oath showing the amount of milk and cream purchased by him during the preceding month, and provides that the commissioner may order an increase or decrease in the amount of the existing bond.

Section 4 provides for a penalty of fine and imprisonment for violation of the act.

The demurrer to the information is based on the claim that the statute is unconstitutional. It is, of course, admitted that the state may require milk dealers to take out a license, and may charge a license fee proportionate to the cost of supervising the business. But it is claimed that the requirements and conditions of sections 2 and 3 are unconstitutional. The general principles governing the consideration of the constitutionality of statutes which interfere in the conduct of what appears to be a lawful business are well settled. The justification for such interference is the preservation of the public health, safety, or welfare. Every intendment is to be made in favor of the lawfulness of such regulations, and it is not the province of the court to interfere except in clear cases. Nevertheless such regulations " are subject to investigation in the courts with a view to determining whether the law or ordinance is a lawful exercise of the police power, or whether under the guise of enforcing police regulations there has been an unwarranted and arbitrary interference with the constitutional rights to carry on a lawful business, to make contracts, or to use and enjoy property." Dobbins v. Los Angeles, 195 U.S. 223, 236, 25 Sup.Ct. 18, 20 (49 L.Ed. 169). " To justify the state in thus interposing its authority in behalf of the public, it must appear: First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals." Lawton v. Steele, 152 U.S. 133, 137, 14 Sup.Ct. 499, 501 (38 L.Ed. 385). " If there existed a condition of affairs concerning which the Legislature of the state, exercising its conceded right to enact laws for the protection of the health, safety, or welfare of the people, might pass the law, it must be sustained; if such action was arbitrary interference with the right to contract or carry on business, and having no just relation to the protection of the public within the scope of legislative power, the act must fail." McLean v. Arkansas, 211 U.S. 539, 547, 548, 29 Sup.Ct. 206, 208 (53 L.Ed. 315). Quoted with approval in Adams v. Tanner, 244 U.S. 590, 37 Sup.Ct. 662, 61 L.Ed. 1336, L.R.A. 1917F, 1163, Ann. Cas. 1917D, 973. In State v. Conlon, 65 Conn. 478, 33 A. 519, 31 L.R.A. 55, 48 Am.St.Rep. 227, the subject of constitutional limitations of the exercise of the police power was under consideration. In that case we pointed out that the principle of equality in rights was embodied in the general and comprehensive language of our Bill of Rights, and held that in the case of an ordinary lawful business essential to the conduct of human affairs, the Legislature had no right to restrict the issuance of licenses to engage in such business to such persons as might be found to be " proper persons" by the municipal officers of cities, boroughs, and towns. Speaking of such a business, we said:

" The Legislature has full power to regulate such a business, but its regulations must be governed by very different principles from those which may govern the regulations of a business in its nature dangerous to the public. In the one business no citizen has an absolute right to engage; in the other all citizens have the right and an equal right to engage. The difference is vital."

The argument which the state makes in support of the constitutionality of this statute is that the business of selling milk to dealers must be done on credit; that there are many milk dealers who are irresponsible; that many producing dairymen have been and will be enforced out of business because they cannot collect their bills; and therefore the act is a proper measure for the preservation of the milk supply. The facts on which the state relies are not of record, and we cannot take judicial notice of them. The statute is unexplained save by its own terms, and it gives no reason for prohibiting all persons from purchasing milk from producing dairymen except such as are able, in one of two alternative ways, to satisfy the food and dairy commissioner of their financial responsibility.

We have another statute (section 3942, G. S.) which forbids...

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