Ward v. Big Apple Super Markets of Bolton Road, Inc.

• Decision Date: 20 October 1967
• Docket Number: No. 24226,24226
• Parties: Clifton A. WARD, Chairman of Georgia Milk Commission v. BIG APPLE SUPER MARKETS OF BOLTON ROAD, INC., et al.
• Court: Georgia Supreme Court

Page 396

158 S.E.2d 396

223 Ga. 756

Clifton A. WARD, Chairman of Georgia Milk Commission v. BIG APPLE SUPER MARKETS OF BOLTON ROAD, INC., et al.

No. 24226.

Supreme Court of Georgia.

Oct. 20, 1967.

Rehearing Denied Nov. 9, 1967.

Syllabus by the Court

The provision of the Milk Control Act (Ga.L.1937, p. 247, as amended, Code Ann. § 42-523 et seq.), authorizing the Georgia Milk Commission to fix the sale prices of milk sold in milk sheds established by the Commission in this State, violates the due process clause of the Constitution of Georgia, Art. I, Sec. I, Par. III (Code Ann. § 2-103).

Arthur K. Bolton, Atty. Gen., G. Ernest Tidwell, Executive Asst. Atty. Gen., George J. Hearn, III, Asst. Atty. Gen., Joel Feldman, Joseph A. Nardone, Deputy Asst. Attys. Gen., Larry D. Ruskaup, Atlanta, for appellant.

Arnall, Golden & Gregory, Cleburne E. Gregory, Jr., H. Fred Gober, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Emmet Bondurant, George B. Haley, Jr., Hansell, Post, Brandon & Dorsey, Hugh M. Morsey, Jr., July W. Felton, Jr., Troutman, Sams, Schroder & Lockerman, Milton A. Carlton, Jr., William H. Schroder, Elliott Goldstein, Powell, Goldstein, Frazer & Murphy, C. B. Rogers, A. C. Latimer, J. Lee Perry, Atlanta, for appellees.

Heyman & Sizemore, W. Dan Greer, Fisher & Phillips, William W. Alexander, Harmon & Thackston, Nolan B. Harmon, Atlanta, Sanders, Hester & Holley, Carl E. Sanders, Augusta, Perry, Walters, Langstaff & Lippitt, H. H. Perry, Jr., Albany, for parties at interest, not parties to record.

PER CURIAM.

The appeal is from a judgment of the Superior Court of Fulton County sustaining the general demurrers to the petition brought by Clifton A. Ward, Chairman of the Georgia Milk Commission, Praying that the named defendants, who are alleged to be corporations engaged in the sale of milk and other dairy products within the Atlanta Milk Shed to retail customers at less than the price fixed by the Georgia Milk Commission, be temporarily and permanently enjoined from continuing to sell milk below the price fixed by the Commission.

The question presented is whether the price fixing provision of the Milk Control Act violates the due process clause of the Constitution of Georgia. While there are other assignments of error, a ruling on this question decides the case. For that reason the decision is limited to this issue.

This court in the full bench decision of Harris v. Duncan, 208 Ga. 561, 67 S.E.2d 692, held that the Act (Ga.L.1937, p. 247, as amended, Code Ann. § 42-523 et seq.) conferring upon the Milk Control Board the authority to fix the price of milk, violates Art. I, Sec. I, Par. III of the Constitution of Georgia (Code Ann. § 2-103), the due process clause, in that it restricts the freedom of contract. See also Williams v. Hirsch, 211 Ga. 534, 87 S.E.2d 70. This full bench decision can be reversed only by the concurrence of all seven Justices of this court, unless there has been some material amendment, or facts that would make the question of law different from that existing in the older decision.

In 1952 (Ga.L.1952, pp. 55-70) the General Assembly amended the 1937 Act (Ga.L.1937, pp. 247-264), as previously amended, which amendment, as the commission contends in its brief, was an 'attempt to provide and maintain freedom of contract by providing a procedure through which contracting parties might go in order to arrive at a price of their choosing * * *' However, the commission in its brief and in oral argument concedes that the issue in the present case is whether the price fixing provision violates the Constitution, and states that the case should be decided on that question, with which we agree. We find that the issue is the same as in Harris v. Duncan, 208 Ga. 561, supra, 67 S.E.2d 692, in which event the commission asks that it be overruled. Seven Justices of this court are not willing to overrule it; thus it controls this case.

There is no merit in the commission's contention that Harris v. Duncan, supra, is not a full bench decision because of the special concurrence of Chief Justice Duckworth, as he concurred in the ruling that the Milk Control Act violates the due process clause of the Georgia Constitution. The basis of his special concurrence was that he was of the opinion that the court was in error in holding that the Act violated the Federal Constitution, because, as he stated: 'Insofar as the Federal question is concerned, we are precluded by the decision in Nebbia v. People of State of New York, 291 U.S. 502, (54 S.Ct. 505, 78 L.Ed. 940), and would be required to sustain the Act as against the attack based upon the Federal Constitution.' Harris v. Duncan, 208 Ga. 561, supra, at p. 566, 67 S.E.2d at p. 695.

It is further argued that the Harris case is not a binding precedent because the decision was predicated on the erroneous assumption by the court that the emergency provision of the Milk Control Act was eliminated by the 1949 amendment. The court there began the opinion with the statement: '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' the due process clause of the State Constitution. Whether or not the court was in error in assuming that the emergency provision of the Act had been stricken, the court ruled (208 Ga. p. 563, 67 S.E.2d p. 693) that: '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 in 'affected with a public interest,' and the milk industry does not come within that scope.'

We do not agree with the contention of the commission that the older case of Fleisher v. Duncan, 195 Ga. 309(3), 24 S.E.2d 15, a full bench decision, is controlling in the present case. The court there stated: 'Since the petition failed to show a right to injunctive relief, for the reason stated, it is unnecessary to determine other questions raised-as to whether plaintiffs also had an adequate remedy at law * * *; and whether the Act was unconstitutional for any reason assigned that has not already been decided. See Holcombe v. Ga. Milk Producers Confederation, supra, 188 Ga. 358, 3 S.E.2d 705; Bohannon v. Duncan, 185 Ga. 840, 196 S.E. 897; Gibbs v. Milk Control Board, 185 Ga. 844, 196 S.E. 791, and citations.' As to the constitutional questions raised, the court merely stated that since the petition failed to state a cause of action for injunctive relief, it was unnecessary to determine 'whether the act was unconstitutional for any reason assigned that has not already been decided,' in other words, for any additional reason not included in those already decided in the cases cited. We recognize that the meaning of that sentence may be somewhat uncertain and ambiguous, but it is clear that it did not amount to a holding that the rulings made as to the constitutionality of the Act in those cases were adopted by this full bench decision.

Judgment affirmed.

All the Justices concur, except MOBLEY and UNDERCOFLER, JJ., who dissent.

MOBLEY, Justice (dissenting).

I do not agree with the ruling of the majority that the price fixing provisions of the Milk Control Act violates the due process clause of the Constitution of this State. Mr. Chief Justice Reid, in the majority opinion upholding the price fixing provision of the 1937 Act in Holcombe v. Georgia Milk Producers Confederation, 188 Ga. 358, 3 S.E.2d 705, in Division 4, expressed my views as to why the Act does not violate the due process clause of the Georgia Constitution. His is a very learned and excellent opinion in which I heartily concur, and to which reference is made for a statement of my views.

I do not agree with the majority that the full bench decision of this court in Harris v. Duncan, 208 Ga. 561, 67 S.E.2d 692, is binding in this case, for in my opinion that case was bottomed on the erroneous assumption that the emergency provision of the Act (Ga.L.1937, p. 247, Code Ann. § 42-523 et seq.) was stricken by an amendment (Ga.L.1949, pp. 78-87) by striking § 24 of the 1937 Act, as amended, which struck the termination date of the Act. The emergency provision was left in the Act, and by the same amendment striking the termination date of the emergency, the legislature added many additional reasons why an emergency existed and why the milk industry is affected with a public interest.

Further, I am of the opinion that the full bench decision of Fleisher v. Duncan, 195 Ga. 309, 24 S.E.2d 15, decided January 14, 1943, prior to the decision in Harris v. Duncan, supra, is a binding precedent on this court in the present case. In Fleisher v. Duncan, supra, the Act was specifically attacked as being in violation of the due process clause of the Georgia Constitution, in that the petitioners were 'compelled to pay higher prices * * * in violation of the rights of said complainants to contract for and purchase milk in a free and unregulated price market.' The court held that they could not prevail without showing 'that the increases in price were not justified and were not fair and proper as being in accordance, with agricultural and economic conditions, or by showing other facts.'

Obviously, if the court had considered the Act unconstitutional, it would not have made this ruling, as that question would not have been reached. On the contrary, it is clear that the court, as shown in headnote 3, based its ruling upon an affirmation and acceptance of the previous ruling of the court in the Holcombe and Bohannon cases. The court did pass on the price fixing provision of the Act as against the claim that it violated the due process clause of the State Constitution.

Further, the contention is made that Fleisher v. Duncan, supra, is distinguishable from Harris v. Duncan, supra,...